SEXUAL HARASSMENT

AT WORK PLACE

A LEGAL PERSPECTIVE

1
Courtesy Adv. Bharat Goyal with permission to use
 GLOSSARY

Sexual Harassment of Woman at

POSH / Workplace (Prevention, Prohibition &
SHWW Redressal) Act 2013

IC Internal Committee

Aggrieved
Woman / Woman subjected to sexual harassment
Complainant

Person against whom sexual harassment

Respondent is complained

2
MAIN PROVISIONS OF THE ACT

● In the matter of Sexual Harassment of Women, the Act

aims at Prevention, Prohibition and Redressal.

● Act aims at preventing harassment of woman by men at

the workplace.

● Act envisages zero tolerance to sexual harassment.

3
 CONT…

● Act mandates Employer shall introduce, monitor,

implement mechanism to prevent Sexual Harassment in

workplace.

● Act defines the way we should live in workplace.

● It is behavioural law.

4
 CONT…

● Act mandates formation of Internal Committee for inquiry

into the complaint of Sexual Harassment and definite

mechanism is given.

● Section 2 provides key definitions

5
Sexual Harassment at Workplace – Adv. Bharat Goyal
CASE LAW NO – I

The Supreme Court

In
Vishaka
v/s
State of Rajasthan
(AIR 1997 SC 3011)
6
 GUIDELINES

● Sexual Harassment has been explicitly defined by Supreme

Court.

● Requirement for employers to prevent the commission of

acts of sexual harassment.

● Requirement for employers to provide the procedures for

resolution, settlement or prosecution of acts of sexual
harassment.

7
 THE SEXUAL HARASSMENT AT
WORKPLACCE (PREVENTION, PROHIBITION
AND REDRESSAL) ACT, 2013 W.E.F. 912.2013

● Object : Prevention + Protection + Redressal.

● The Act recognizes the right of every woman to a safe and

secure workplace environment irrespective of her age or

employment/work status.

8
WHO IS AN AGGRIEVED WOMAN UNDER THE ACT?

Aggrieved Woman

Visiting a
Student
Working Workplace

Co-worker /
Domestic Regular/ Employed Contract
Temporary/ For directly/
Worker remuneration/ Worker /
Ad Hoc / Through Probationer /
Voluntary
Daily Wager basis / an agent Trainee /
otherwise Apprentice /
called by any
other such
name
9
 WHAT IS A WORKPLACE?

● Any place visited by the employee arising out of or during

the course of employment, including transportation
provided by the employer for undertaking such a journey.

● A workplace covers both the organised and un-organised

sectors.

● Includes all workplaces whether owned by Indian or

foreign companies having a place of work in India.

10
 CONT…

All women working or visiting workplaces, for example:

Nursing
Homes Hospitals
NGOs
Sports
Farms
Facilitie
Government s
Cooperative
Organisations Corporations
Societies

  House Educational Service

Institutions Providers
Companies

11
WHAT IS SEXUAL HARASSMENT AT
THE WORKPLACE?
“Sexual Harassment” includes anyone or more of the

following unwelcome acts or behaviour (whether directly or

by implication), namely:
 

● Physical contact or advances;

 
● A demand or request for sexual favours;

12
 CONT…

● Making sexually coloured remarks;

 
● Showing pornography;

 
● Any other unwelcome physical, verbal or non-verbal

conduct of a sexual nature.

13
 KEY ELEMENTS OF WORKPLACE
SEXUAL HARASSMENT
● Situations start off innocently and end up in inappropriate

and unprofessional behaviours.

● Workplace sexual harassment is sexual, unwelcome and

the experience is subjective.

● It is the impact and not the intent that matters and it

almost always occurs in a matrix of power.

14
 CONT…

● A woman may experience a single instance of sexual

harassment or a series of incidents over a period of time.

● Each case is unique and should be examined in its own

context and according to the surrounding circumstances
as a whole.

● To enable prevention of sexual harassment at the

workplace, it is critical to recognize and differentiate
between welcome and unwelcome sexual behaviour.

15
FORMS OF WORKPLACE SEXUAL
HARASSMENT.
Two common forms of Sexual Harassment / Inappropriate
behaviour

● QUID PRO QUO (literally ‘this for that’)

● Implied or explicit promise of preferential/detrimental

treatment in employment.

● Implied or express threat about her present or future

employment status.

16
 CONT…

● HOSTILE WORK ENVIRONMENT

● Creating a hostile, intimidating or an offensive

work environment .

● Humiliating treatment likely to affect her health

or safety.

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 SCENARIO

A. Scenario that constitute quid pro quo or

type of Sexual Harassment at the

workplace:

18
 SCENARIO EXAMPLE

● Asha is a bright young team leader working in a call centre.

Known to be forthright, she is dedicated, hardworking and
is a perfectionist.

● Asha stays back at work late one evening with her

colleague Amit to complete work for an important
presentation.

● Amit offers to buy Asha dinner and later drop her home
since it’s been a long day.

19
 CONT…

● After dinner, Amit proposes to Asha that he would like her

to spend the night with him. Asha refuses politely but firmly

and goes home.

● Next evening, Amit repeats his request and on Asha’s

refusal, threatens her that if she doesn’t give-in, he will tell

everyone that she made a pass at him:

20
 WHAT IS WORKPLACE ‘THIS FOR
THAT’ SEXUAL HARASSMENT?
● Mr. Amit’s threat to Asha that if she does not agree to his

‘request’ for a sexual favour, he will in return smear her

character at the workplace as a person who wants to use

sexual favours to her advantage constitutes quid pro quo

form of sexual harassment.

● Amit behaviour is unwelcome, sexual, and has a negative

impact on Asha.

21
 EXAMPLE OF SCENARIO THAT CONSTITUTES A
‘HOSTILE WORK ENVIRONMENT’ TYPE OF SEXUAL
HARASSMENT AT THE WORKPLACE:

● Asha is a researcher at a media agency led by Amit, a

well-known journalist.

● In the first few months of Asha’s employment, Amit is very

pleased with her work and publicly appreciates her.

● Soon after, Amit frequently summons Asha to his office on

the pretext of work and makes verbal sexual advances
and sexually coloured remarks to her.

22
 CONT…

● He brushes aside her protests by saying that they would

not be able to work as a team unless she interacted
closely with him and they both got to know each other
well.

● However, once she categorically rebuffed his sexual

advances, he has stopped. Now he ridicules her work and
humiliates her in the presence of colleagues and the staff.

● He discriminates against her by allotting projects to her

and then arbitrarily withdrawing the work.
23
 CONT…

● The workplace actions are a result of Asha

rebuffing the unwelcome, sexual advances of

Amit and this constitutes hostile work

environment form of workplace sexual

harassment.

24
CONSTITUTION OF THE INTERNAL
COMPLAINTS COMMITTEE.
● Every employer of a workplace shall by an order in
writing constitute an Internal Complaints Committee.

● To be headed by a Woman, Presiding Officer employed at

Senior Level from amongst the employees .

● If not, then from other offices/or administrative units of

the workplace.

25
 CONT…

● Plus Two Representatives from employees committed

to the cause of women or have experience in social

work or having legal knowledge.

● One member of an NGO or Association Committed to

women’s cause, or a person familiar with sexual

harassment.

26
 CONSTITUTION OF LOCAL
COMPLAINTS COMMITTEE.

● Every District Officer shall constitute in the District

concerned a Committee to be known as the Local
Committee to receive complaints of sexual harassment
from establishments where the Internal Complaints
Committee has not been constituted under this Act due to
their having less than 10 or if the complaint is against
the employer himself.

● Any complaint received to be forwarded to the LC within 7

days of receipt.
27
 INQUIRY INTO COMPLAINT

● Under Section 11 the Internal Committee or the Local

Committee has the same powers as are vested in a civil
court under the Code of Civil Procedures, 1908 when trying
a suit in respect of the following matters namely:-

a) Summoning and enforcing the attendance of any

person and examining him on oath.

b) Requiring the discovery and production of documents.

c) Any other matter which may be prescribed.

28
CONSEQUENCES OF FAILURE TO PREVENT
SEXUAL HARASSMENT AT THE
WORKPLACE
● If an employer fails to constitute an internal committee or

take action based on the decisions of the internal

committee or the local committee or report the number of

cases filed, if any, and their disposal under the act in

the annual report to the District Officer then the employer

shall be punishable with a fine which may extend to fifty

thousand rupees.

29
 CONT…

● Further if any employer, after having been

previously convicted of an offence punishable

under this act subsequently commits and is

convicted of the same offence then he is liable

to twice the punishment and cancellation, of

his license or withdrawal.

30
INVESTIGATING COMPLAINTS
UNDER THE ACT
● A complaint may be made in writing within 3 months of

the incident to the Committee and it has to act in

the matter- Extension of time limit, if so warranted by

the facts of the matter.

● In case woman does not make the complaint, her heir

or a person on her behalf can file the complaint.

31
 CONT…

● Internal committee empowered to settle the matter

between complainant and respondent by Conciliation.

● No monetary settlement can be arrived at by the

Committee but where a settlement has been arrived

at the same has to be sent to the Employer or

District Officer as the case may be.

32
 CONT…

● Committee Investigating the complaint shall ordinarily

complete its hearing within 90 days of the complaint

made to it.

● Copy of the findings to be given to both the parties to

enable them to make representation to the Committee

about the findings. Only after this final action to be taken

in the matter.
33
COMMITTEE EMPOWERED TO
GIVE RELIEF.
● During the pendency of the enquiry transfer the

aggrieved woman or the respondent to any other

workplace.

● Grant Leave upto three months to the aggrieved woman

(in addition to any other leave the woman may want to

avail).

34
 CONT…

● Grant such other relief that may be prescribed

i.e. at the request of the complainant

Restrain the respondent from reporting on the work

performance of the aggrieved woman or writing her
confidential report, and assign the same to another
officer;

Restrain the respondent in case of an educational

institution from supervising any academic activity
of the aggrieved woman.
35
 DUTIES OF THE EMPLOYER

● Provide a safe working environment for women.

● Display in a prominent place penal consequences of

Sexual Harassment and the order constituting the

Committee for POSH.

36
 CONT…

● Organize workshops and awareness programs are regular

intervals for sensitizing employees with provisions of the
Act and orientation programmes for the members of the
ICC.

● Facilities for the ICC to conduct its deliberations.

● Assist in securing attendance of respondent and

witnesses before ICC or LCC.

37
 CONT…

● Provide assistance to the woman to file a complaint

under the IPC, if the perpetrator is not an employee of the
company.

● Treat Sexual Harassment as a Misconduct under the

service rules.

● Monitor timely submission of reports by the Internal

Committee.

38
PUNISHMENT FOR FALSE AND
MALCIOUS COMPLAINTS.
● If the ICC or LCC arrives at a conclusion that the
complaint is malicious or knowing it to be false, forged or
produced misleading documents, the person may be
punished as per the service rules.

● Mere inability to substantiate a complaint or produce

proof shall not attract action.

● Malicious intent has to be established after an enquiry

with principles of natural justice observed.
39
 DETERMINATION OF COMPENSATION.

The committee shall have regard to the :-

(a) Mental Trauma, Pain, Suffering and Emotional Distress

caused to aggrieved woman.

(b) The loss in career opportunity due to the incident.

(c) Medical Expenses – Physical or Psychiatric treatment.

40
 CONT…

(d) The Income and Financial Status of Respondent.

(e) Feasibility of payment in lump sum or installments.

41
 PRINCIPLES OF NATURAL JUSTICE –
GIVING FULL OPPORTUNITY TO THE
ACCUSED TO REBUT CHARGES.

● No man can be condemned unheard.

● Reasonable opportunity must be given to be heard.

● Opportunity to cross-examine witnesses to challenge

any testimony and point out any inconsistencies or

check out doubts on the credibility of the witnesses.

42
 GROUNDS OF ATTACK

● Formation of the Internal Committee is defective.

● Procedure adopted by the Internal Committee is in

violation of principles of natural justice.

● Findings of the Internal Committee is perverse.

43
 CONT…
● Incident alleged has not taken place in the

Workplace.

● Act alleged does not amount to sexual harassment.

● Consensual relation hence not sexual harassment.

44
 LIVE EXAMPLES /

REPORTED INSTANCES

45
WOMAN BEING SUBJECTED TO INDECENCY
AND OBSCENITY (INCIDENT ON 17.08.2015)

● An American Lady, Maryanna Abdo, Director Panthon

Company was taking a morning walk.

● The accused had sexually harassed her by flashing in front

of her in a Colaba Street.

● She whatsapped the photo of the person, whom she

confronted.

46
 CONT...

● The lady after capturing his photo, twitted the same and

used the micro- blogging site Twitter to ask for help.

● The Chief Minister of Maharashtra asked the police to

investigate.

● Mr. Gopal Wamiki was identified as the person and

arrested.

47
 CONT...

● His Photo and sketches enabled his arrest.

● He was produced in the court and was given bail for an

amount of Rs. 5,000.

48
 PARROT ARRESTED FOR SWEARING AT 85 YEAR
OLD WOMAN (INCIDENT DATED 19.08.2015)

● A parrot in Chandrapur detained by the Police.

● An elderly woman filed Complaint Complaint against it for

making abusive comments.

● The parrot named as Hariyal was trained by its owner

Suresh Sakharkar to abuse his step mother.

49
 CONT...

● The bird apparently insulted the step mother who claimed

that she was being harassed for last two years.

● There was a land / property dispute between the woman

and her step son.

● The Police seized the Parrot and watched it carefully but

did not utter a word at the Police Station after being
confronted by the Complainant.

50
 CONT...

● The Police did not press the charges against the Parrot,

but handed it over to the State’s Forestry Department.

● Easier for the Police to round up birds?

51
 Comparative analysis - POSH
Act and #metoo:
Sr.No POSH # metoo
1. ICC–Limited powers of a Civil Criminal Court
Court
2. Limitation – 3 months / 6 months No Limitation

3. Confined to workplace Applicable in a

harassment. large canvas
4. Civil Clothing to a Criminal Act Treated as a
criminal offence

52
 CONT...

Sr.No POSH # metoo

5. Based on preponderance of Based on proof
possibilities beyond reasonable
doubt
6. Publicity Prohibited No prohibition for
wide publicity

7. Limited period for inquiry and Likely to drag on for

trial years

8. Reformative justice Retributive justice

53
 GENPACT –AVP SWAROOP RAJ COMMITS
SUICIDE FOLLOWING SEXUAL HARASSMENT
COMPLAINT

● On December 18, 2018 the AVP who was accused by

two female employees of sexual harassment
committed suicide.

● He was suspended pending the hearing in the Delhi

NCR region where this American Company is located.

● He committed suicide at his Noida home.

54
 CONT…
● In his suicide note to his wife he states that:-

● “The allegations are baseless but the entire

Genpact will know about it, hence I do not
have the courage to face everyone.

● I want you to be strong and live your life with

respect because your Husband did not do
anything”.

55
 CONT…

● He professed his love for his wife in the suicide note.

● His wife approached the Police with a Complaint accusing

Genpact of wrongfully suspending Swaroop.

● The two women employees and the Company have been

booked for abetment of suicide.

56
 Rajendra Pachauri – Heading Intergovernmental
Panel on Climate Change – Awarded the Nobel Peace
Prize (2013) - Removed

● The Energy and Resources Institute (TERI) of which Dr.

Pachauri (74 years) is Director General faced a complaint

from an intern 29 years old.

● The lady lodged an internal complaint and also complaint

with the police.

57
 CONT...

● The lady has alleged that he has sent sms’s and sexually

harassed her during the last two years.

● The Complainant has resigned by claiming that she had

been “mistreated” in the “worst possible manner”.

58
 CONT...

● The research analyst has hit out at TERI for

creating what she has termed as a “hostile

environment” which “only escalated and showed

no signs of subsiding whatsoever.”.

59
 CONT...

● She alleged that TERI protected Pachauri and

provided him with full immunity, despite being

held guilty of sexual harassment at the

workplace by its own inquiry committee.

60
 CONT…
● Dr. Pachauri has assailed the verdict of the ICC finding him

guilty of the charges of sexual harassment and the

appellate Industrial Tribunal had stayed the operation of

the report.

● The lady has challenged the matter in the Delhi High Court

and the High Court had given notices to both parties and

they have already filed their affidavits as well as rejoinders

to the affidavits in the Court.

61
 SMS’s of Dr. Pachauri to the Lady

● “My LIFE your good wishes have brought me safely home?

Will ever your love bring me safely into my real home your
warm heart”.

● “My LIFE that briefly was! Sure. I shall try to suppress my

human feelings, and live with a sad restraint on my words
and actions. Never to make you uncomfortable or stressed
on my account”.

62
 CONT…

● “My LIFE I get the sense that you get embarrassed when I
say anything complimentary which is truly genuine and
from the heart. Do please tell me if you would prefer that I
stop doing so!”

● “I mean it. I never want to make you uncomfortable even if

it requires curbing my own instincts!”

63
 CONT…

● “I never thought I was so repulsive to you, and never in the

past few days have I thought that you wouldn't believe me
when I tell you that I love you! I never have lied and never
will lie to you!”

● “OK, but please don't say I don't love you. That hurts very
much, particularly when I have bared my heart to you, and
you are aware of how every breath of mine has you at the
centre”.

64
 CONT...

● “And you think all this is frivolous. That is an unkind cut. And
you need not feel responsible about sending me a message
when you reach home. I am sorry for my actions. I shall be
very very restrained now. I am not a cheap philanderer as you
are trying to convey”.

● “And just to prove to you how much I love you, I shall go on a

fast after the cricket match tomorrow. I will break the fast
only when you tell me that you believe I love you with
sincerity and unfathomable depth”.

65
 CONT…

● “All right we have our respective perceptions which differ,

and we can live with them and also let live. Perhaps some

day you would know how sweet and sublime my feelings

for you are! I shall not call off my fast till you fully believe

that sacred truth”.

66
 CONT…

● “All right! I've got the message. I wish you would see the

difference between something tender and loving and

something crass and vulgar. You obviously don't! So I shall

slink away and withdraw! Farewell my sweet. But I insist

on the fast just to hear you say that you believe I really

love you!”

67
 CONT…
● “Besides I want to punish myself for alienating you.

● And losing the most wonderful girl I've ever met!:

● I told you that bit that I can get over you, but will love you

at the same time. You said love is big. I assure you it can't

be bigger than what resides in my heart!”

68
 CONT…

● “I hope you're cool and far from nervewrecked! If it is any

comfort at all I want to assure you that I love you in the

most sublime, wholesome and genuine way. Never would I

do anything to you or for you that you don't consider

supremely beautiful”

● “I cannot live with the fact that you think so poorly of me”.

69
 SMS’s of the Lady to Dr. Pachauri

● “Dear Dr. Pachauri, not really annoyed but sure I

do have some concerns and I thought your phone
would be dysfunctional since you're abroad so
didn't sms back. See you for when you are back
to TERI. Regards.

● Hi Dr. Pachauri, yes I do get a little embarrassed

and also feel overwhelmed. I'm sorry I just saw
ur msgs.!”
70
 CONT...
● “I never said you were so repulsive. I came all

the way just to keep my word and do wat u I best

do talk genuinely. As a woman and a 21st

century woman deserve the right to say that you

kindly shouldn't try and or just hold me close or

kiss me. I just got to the metro.!”

71
 CONT...
● “Forgive me for saying so but Love isnt frivolous.

I did think you may have had or have feelings

which just state that you like me but love is

something big. Anyway, as my responsibility I

will msg you when I reach home..!”

72
 CONT...

● “I ain't and don't wish to be just a pretty face in

your office.that hurts and is a bit demoralizing.

Im much inexperienced and no where near where

you are. I will never do anything out of line with

my conscience or take advantages. I ain't made

that way at all”.

73
 CONT...

● “I do believe you and you know it but I felt a little

violated. Please you are not to grab me and or

kiss me”.

74
 CONT...

● “I am a little less nervewrecked now and I hope

you eat something soon. Have a good trip to

Poland Dr. Pachauri and I'll see you next week.

Best regards”.

75
 CONT...
● “I don't and I told you so as well. But if there is

something I felt inappropriate or uncomfortable

about, I must do let you know. I take a lot of time

to open up with people but anyway I agreed

when you said that to leave it yesterday itself.

Please just get some good rest”.

76
Criminal Case Filed by Delhi Police

● More than a year after a 29-year-old woman

complained to the police about Rajendra
Pachauri, formal charges have been filed against
Mr. Rajendra Pachauri on February 29, 2016.

● According to news reports the charge sheet runs

to 1,400 pages and includes allegations of
stalking, criminal intimidation, and sexual
harassment.
77
 DOCTOR’S TOUCH NOT SEXUAL
HARASSMENT
● The Division Bench of the Bombay High Court of the Acting

Chief Justice Ms. Vijaya Kapse Tahilramani and Justice

Makarand Karnik have quashed the charges of sexual

harassment against the Doctor against whom the patient

had filed charges of improper touch while diagnosing her

complaint of pain in her hand and shoulders.

78
 CONT...
● The Complainant had come with a problem of her nerves

in the right and left hand.

● The Doctor had made her sit on the examination table and

told her to hold her fingers with both hands, which she

did.

● The Doctor pressed her hands as well as her shoulders.

79
 CONT...

● The Doctor thereafter told her that vitamin D 3 and D 12

injections have to be given to her hip. The patient claimed
that the Doctor’s touch was not appropriate and hence
lodged an FIR before the Navghar Police Station.

● The prosecution sought for expert medical opinion

consisting three Doctors of Sir J. J. Hospital which opined
that check up done by the Doctor required him to touch
her on the shoulders and hip.

80
 CONT...

● The injections on the hip were appropriate for

the woman’s medical complaint.

● Moreover, the Complainant’s young son as well

as a woman compounder were present at the

time of medical examination.

81
 CONT…

● The Court held that it cannot be said that the conduct of

the doctor was something which in the given facts and

circumstances no medical professional in his ordinary

senses and prudence would have done.

● The Court further held that no offence was made out in

the case.

82
SOME THINGS NOT DONE

● Making personal comments about women

employees in a group – in her presence or behind
her back – Weight, shape, dressing, make up, hair
style, etc.

● Asking for explanation in a group about some

failure or wrong doing before other team
members.
83
 CONT…

● In a male group, discussing the

females and asking who is going around

with whom and going into their personal

lives.

84
 Sexual Harassment – 5 Questions to Ask
Yourself?- NO would imply Harassment.

● Would you want your behaviour reported in the company,

newspaper or TV?

● Is there equal power in the relationship?

● Is there equal initiation and participation between the

persons in the relationship?!”.

85
 CONT...

● Would this behaviour be present if your spouse or your

family member was with you?

● Would you tolerate this behaviour if it were to be

replicated with your spouse/family relation?

86
LANMARK JUDGMENTS

OF COURTS

87
CASE LAW NO – II

The Supreme Court

In
Rupan Deol Bajaj
v/s
K. P. S. Gill
1995 SCC (6) 194
88
 FACTS

● At a dinner party in July 1988, a Senior IAS Officer, Rupan

Bajaj was asked by Mr. KPS Gill to come and sit near him.

● Mr. Gill suddenly pulled the chair close to him, on which

Ms. Bajaj was about to sit.

● Mr. Gill again pulled it close to him, when Ms. Bajaj tried to

put the chair back to its original position.  

89
 CONT…

● Realizing something was wrong, Ms. Bajaj immediately left

the place and went back to sit with ladies but was again

confronted by Mr. Gill after 10 minutes.

● In a rude voice he again called her to sit with him and

when she tried to leave, he blocked her way.

● When Ms. Bajaj tried to turn back and leave, Mr. Gill

slapped on her posterior.

90
 CONT…

● Rupan Bajaj filed a suit against him, despite the public

opinion that she was blowing it out of proportion, along

with the attempts by all the senior officials of the State to

suppress the matter.

● The Supreme Court in January, 1988 fined Mr. K. P. S. Gill

Rs.2.5 lakhs in lieu of three months Rigorous

Imprisonment.

91
 CASE LAW NO – III

The Supreme Court

In
Apparel Export Promotion Council
v/s
A. K. Chopra
(1999 LLR 169)
92
 FACTS

● An attempt was made to sexually molest the employee.

● The High Court held that:-

❑ The Respondent did not “actually” molest Miss X but

only “tried to molest her” and therefore his removal
from service was not warranted.

❑ The employee filed a special leave petition in the

Supreme Court.

93
 HELD

● In a case involving charge of sexual harassment or attempt to

sexually molest, the courts are required to examine the broader
probabilities of a case and not get swayed by insignificant
discrepancies or narrow technicalities or dictionary meaning of
the expression “molestation”.

● They must examine the entire material to determine the

genuineness of the Complaint.

● The statement of the victim must be appreciated in the

background of the entire case.
94
 CONT…

● The evidence of the victim must inspire some confidence,

so as to enable Courts to reply upon the same.

● Such cases are required to be dealt with great sensitivity.

● Sympathy in such cases in favour of the superior officer is

wholly misplaced and mercy has no relevance.

95
 CONT…

● The conduct of the respondent against his junior female

employee, Miss X, was wholly against moral sanctions,

decency and was offensive to her modesty.

● Reduction of punishment in a case like this is bound to

have demoralizing effect on the women employees and is a

retrograde step.

96
 CONT…

● There was no justification for the High Court to interfere with

the punishment imposed by the departmental authorities.

● The act of the respondent was unbecoming of good conduct and

behaviour expected from a superior officer and undoubtedly
amounted to sexual harassment of Miss X.

● The punishment imposed by the appellant, was, thus,

commensurate with the gravity of his objectionable behaviour
and did not warrant any interference by the High Court.

97
 CASE LAW NO – IV

The Kerala High Court

In
L. S. Sibu
v/s
Air India Ltd

Judgment dated 08.04.2016 in W.P

No. 4001 of 2016
98
 FACTS

● The ICC of Air India Limited, Southern Region received a

complaint forwarded by the Airport Director.

● This complaint alleged to have been raised by 17 lady

employees' of Air India-SATS (AI-SATS), a joint venture

company of Air India and Singapore Air Transport Services

Limited.

99
 CASE OF THE PETITIONER

● He was not given any opportunity in the matter.

● The enquiry was concluded without giving an opportunity

to the petitioner to cross examine the complainant and to

controvert the factual finding in the enquiry report and

hence the enquiry was vitiated.

100
 HELD

● Every Internal Committee constituted under the Act,

necessarily has to follow the principles of natural justice in

conducting their enquiry.

● The rules framed under the Act also would indicate that

the Committee shall follow the principles of natural justice

- Rule 7 (4).

101
 CONT…

● Lord Denning in B. Surinder Singh Kanda v/s Government of

the Federation of Malaya [1962 AC 322] observed as
follows:-

● If the right to be heard is to be a real right which is

worth anything, it must carry with it a right in the
accused man to know the case which is made
against him. He must know what evidence has been
given and what statements have been made
affecting him and then he must be given a fair
opportunity to correct or contradict them.
102
 CONT…

● The fundamental principles relating to the principles of natural

justice is that when prejudicial statements are made, the same
shall not be used against any person without giving him an
opportunity to correct and contradict.

● In sexual harassment complaint, sometimes the complainant may

not have courage to depose all that has happened to her at the
work place. There may be an atmosphere restraining free
expression of victim's grievance before the Committee.

● The privacy and secrecy of such victims' are also required to be

protected.
103
 CONT…

● It is to be noted that verbal cross examination is not the

sole criteria to controvert or contradict any statement

given by the aggrieved before any authority.

● Primarily, in a sexual harassment complaint, the

committee has to verify and analyse the capability of the

aggrieved to depose before them fearlessly without any

intimidation.
104
 CONT…

● If the Committee is of the view that the aggrieved is a

feeble and cannot withstand any cross examination, the

Committee can adopt such other measures to ensure that

the witnesses statement is contradicted or corrected by

the delinquent in other manner.

105
 CONT…

● The fair opportunity, therefore, has to be understood in the

context of atmosphere of free expression of grievance.

● If the Committee is of the view that the witness or

complainant can freely depose without any fear, certainly,

the delinquent can be permitted to have verbal cross

examination of such witnesses.

106
 CONT…

● In cases, where the Committee is of the view that the

complainant is not in a position to express freely, the
Committee can adopt such other method permitting the
delinquent to contradict and correct either by providing
statement to the delinquent and soliciting his objections to such
statement.

● What is reminded here by this Court to the Committee is that a

fair opportunity should be given to the delinquent in such manner
the Committee think fit to consider. There is no easy and precise
rule defining fair opportunity.

107
 CASE LAW NO – V

Delhi High Court (DB)

In
Ashok Kumar Singh
vs
University Of Delhi & Ors

Judgment dated 18.08.2017 in

LPA 305/2017
108
 HELD

The ICC has been directed to proceed in the following

manner:-

● The appellant would be allowed to cross-examine the

witnesses of the complainant through a questionnaire

which would be submitted to the ICC at the time when the

witnesses are produced for their cross-examination.

109
 CONT…

● The witnesses would be called one by one by the ICC to

answer the questionnaire which is put to them. Witnesses

would answer questionnaire in the presence of the

Committee. Every effort shall be made by the ICC to

complete the testimony of a single witness the very day on

which the recording of the witness cross-examination

commences.

110
 CONT…

● The ICC shall endeavour to ensure that the witnesses who are
being cross-examined, does not confabulate with the witnesses
who are yet to be cross-examined.

● The ICC shall make every endeavour to supply a copy of the

cross-examination of the complainants' witnesses to the
appellant on the date on which the cross-examination at the
earliest, in any case before cross-examination of the next
witness.

111
 CONT…

● After completion of the cross-examination of the

complainants' witnesses, the appellant would be permitted

to lead defence evidence. The appellant shall submit the

examination-in-chief of the defence witnesses to the ICC in

writing within one week of completion of the

cross-examination of the complainant's witness. Copies of

the statements of the appellant's witnesses would

immediately be made available to respondents no.3 to 5.

112
 CONT…

● The procedure set out above for cross-examination of

the witnesses of the complainant would be followed in

identical terms so far as cross-examination of the

appellant's witnesses by the respondents no.3 to 5.

113
 CONT…

● It is directed that ICC shall complete the above

exercise within a total period of three months

from today.

114
 CASE LAW NO – VI

The Madras High Court

In
Gayatri Balaswami
v/s
Novasoft Technologies Ltd

Judgment dated 02.09.2014 in

Writ Petition No. 463 of 2012
115
 FACTS

● The aggrieved employee was employed as Vice President (M&A

Integration Strategy).

● The aggrieved employee lodged a Criminal Complaint under the

IPC for Sexual Harassment against two officers of the Company.

● The Respondent employer filed counters alleging defamation and

extortion under the garb of Sexual Harassment.

● Disputes of both the parties reached the Supreme Court .

116
 CONT…

● The dispute was referred to arbitration as per the

employment agreement.

● Claims were adjudicated by the Arbitrator.

● The Petitioner made a claim of Rs.28,88,55,500/- under

twelve different headings.

● The Arbitrator awarded payment of Rs.2 crores to the

Petitioner with interest at 18% per annum from 01.04.2012.

117
 CONT…

● The claim for damages on grounds of mental trauma

caused due to non constitution of ICC was rejected by the

Arbitrator.

● The Company was directed to give a NOC to the effect that

the termination of services was a contractual termination,

so as not to mar the future employment prospects of the

Petitioner.

118
 CONT…

● On an Appeal by the Petitioner to the High Court for

rejection of all other claims except one, the Award of the

Arbitrator was partial reversed.

● The Respondent was directed to pay additionally an

amount of Rs. 1 Crore 68 lakhs as exemplary damages for

failure on the part of the employer to constitute ICC.

119
DECISION OF THE ARBITRATOR AND THE HIGH COURT ON THE
DIFFERENT HEADS OF CLAIM OF THE PETITIONER

Claim Description of the Claim Claim Decision of Decision of the Hon’ble

No, Amount the Arbitrator Madras High Court
(Rs.)
1. Bonus for the Completion of 21,60,000 Rejected In concurrence with the view
first year of employment of the Arbitrator.

2. Arrears in salary 11,62,500 Rejected In concurrence with the view

of the Arbitrator.

3. Severance payouts 1,17,00,000 Allowed In concurrence with the view

of the Arbitrator.

4. Bonus for the second year of 18,00,000 Rejected In concurrence with the view
employment of the Arbitrator.

5. Non-revision of salary after the 67,50,000 Rejected In concurrence with the view
end of the first year of of the Arbitrator.
employment. 120
DECISION OF THE ARBITRATOR AND THE HIGH COURT ON THE
DIFFERENT HEADS OF CLAIM OF THE PETITIONER

Claim Description of the Claim Claim Decision of Decision of the Hon’ble

No, Amount the Arbitrator Madras High Court
(Rs.)
6. Failure of the respondent to 3,51,00,000 Rejected In concurrence with the view
transfer the claimant to the of the Arbitrator.
United States of America (USA)
7. Non-compliance of the 3,51,00,000 Rejected In concurrence with the view
procedure by the respondent of the Arbitrator.
while purportedly terminating
the claimant
8. Not providing bonus in the 18,00,000 Rejected In concurrence with the view
second year of employment of the Arbitrator.

9. Not providing the learning and 26,10,000 Rejected In concurrence with the view
training opportunity of the Arbitrator.

10. Failure to provide stock option 4,50,00,000 Rejected In concurrence with the view
under the Company's employee of the Arbitrator.
stock option scheme
121
DECISION OF THE ARBITRATOR AND THE HIGH COURT ON THE
DIFFERENT HEADS OF CLAIM OF THE PETITIONER

Claim Description of the Claim Claim Decision of Decision of the Hon’ble

No, Amount the Arbitrator Madras High Court
(Rs.)

11. Loss of employment 5,76,00,000 Rejected In concurrence with the view

opportunity of the Arbitrator.

12. Damages for non-constitution 9,07,00,000 Rejected The Court differed with the
of committee to inquire into Arbitrator on this head of
allegations of sexual claim and modified the
harassment arbitration award by allowing
an additional compensation
of Rs.1,68,00,000/- (Rupees
one crore and sixty eight lakhs
only) to the petitioner
towards the 12th head of her
claim.

122
 HELD

● The mental and emotional distress caused to an aggrieved

woman in the absence of the ICC cannot be measured

through any set formulae and such failure deserves

punitive damages.

123
 CONT…

● The finding reached by the Arbitrator that even if the

natural right of an employee to a safe working environment

is breached, the measure of damages cannot be more than

one year salary, is not in tune with public policy.

124
 CONT…

● The fact that a sexually harassed woman employee, has a

right, in addition to other rights, to walk out of the

Company on the ground of breach of contract, is not a

ground to hold that the measure of damages cannot be

more than that fixed for a breach.

125
 CONT…

● The conclusion of the Arbitrator that the Petitioner always

had a right to go out, is simply akin to affixing a seal of

approval upon the decision of M.F Hussain to leave the

Country on the ground that if he did not have a safe living

atmosphere in India, it is always open to him to move out.

126
 CONT…

● Presence of a grievance committee or an ombudsman, is

not the same as ICC which is a specialized committee with
external expertise.

● If the law requires a particular act to be done in a

particular manner, it shall be done only in that manner and
not otherwise.

● No ombudsman can be a substitute for an ICC.

127
 CONT…

● What is more shocking is the finding of the Arbitrator that

the Petitioner had not alleged or proved any physical or

mental or emotional injury.

● Emotional or mental injury for a woman is an automatic

and natural result of sexual harassment at workplace,

unless it is pleaded by the offender that she was happy

about it.

128
 CONT…

● It is not the case of the Respondent that the Petitioner was

happy about the harassment and actually welcomed it.

● The moment harassment is established, emotional and

mental injury is to be presumed.

129
 CONT…

● The presence of the ICC would have:-

● Ensured Internal Rederessal for woman employee.

● Sent a zero – tolerance message within the

organization.

● Prevented a series of litigation that may be initiated.

● The delay caused by the aggrieved person in filing a Police

Complaint or exercising other rights cannot be a road block in
imposing such penalty.
130
 CONT…

● Considering the status occupied by the Petitioner and the

opportunities she lost on account of non-constitution of the

ICC, the Petitioner was entitled to an amount equivalent to

the severance benefit of Rs.1,68,00,000/- as compensation

towards the 12th head of claim.

131
 CONT…

● In addition to the compensation awarded by the Arbitrator,

the Petitioner was held entitled to an additional amount of

Rs.1,68,00,000/- towards compensation against the 12 th

head of claim.

132
COMPLIANCE CHECKLIST

FOR EMPLOYERS

133
 POLICIES

● Have you prepared and implemented an internal Anti-Sexual

Harassment Policy in your organization.

● Have you created an Internal Complaints (ICC) for each

branch or office as per the Anti-Sexual Harassment Act,
2013? (applies for each branch or office with 10 or more
staff).

● Is sexual harassment specified as a form of misconduct

under the employment contract or service rules, or the
standing orders (if standing orders are applicable to your
business)?

134
 NOTICES

● Have you displayed sufficient notices informing employees

about your organization’s stance on sexual harassment and

the consequences of indulging in such acts.

● Have you provided sufficient information about the members

of the ICC in prominent places in the organization, so that

employees and staff can reach them?

135
EMPLOYEE AWARENESS AND
ASSISTANCE
● Do you conduct periodic workshops or seminars
to sensitize employees about the stance of your
organization on sexual harassment and about
the consequences of engaging in any conduct
that amounts to sexual harassment?

● Have you made efforts to make employees

aware about their rights under the Act?

136
 CONT…

● Is there any system of process, of providing assistance to

an employee who has been sexually harassed, in

approaching complaints committees and in dealing with

psychological and other effects of sexual harassment.?

● Does the organization provide assistance to the harassed

employee to make a criminal complaint in the police

station? Have employees been made aware of this?

137
OBLIGATIONS PERTAINING TO ICC

● Do you have required number of members in

the ICC as per the conditions laid down in the
Anti-Sexual Harassment Act, 2013?

● Have you conducted an orientation

programme for the members of the ICC?

138
 CONT…

● Do you conduct capacity and skill building

workshops for the members of the ICC?

● Do you provide necessary facilities to the ICC

for dealing with sexual harassment

proceedings?

139
COMPLIANCE WITH COMPLAINTS
COMMITTEE RECOMMENDATIONS

● Have you followed the recommendations of the Local

Complaints Committee/ ICC (as applicable) regarding

the interim measures?

● Have you implemented the Local Complaints

Committee / ICC’s recommendations as per the final

award?

140
 CONT…

● Do you monitor the functioning and

performance of the ICC at a broad level? For

example, do you know whether complaints

are being decided with prescribed time,

limits, whether necessary procedures are

being followed, etc.?

141
 REPORTS
● Does the ICC forward an annual report

containing necessary details of sexual

harassment proceedings?

● Do you include information about pending and

resolved sexual harassment cases in the

annual report of your Company?

142
 CONCLUSIONS

● As the number of female employees entering the

employment sector is increasing, it becomes the
responsibility of the employer to have a safe & secure
workplace for all its employees.

● Reportable incidents of sexual harassment at work place,

needs to be investigated as per guidelines laid down by
Apex Court, as well as The Sexual Harassment Act 2013.

143
 CONT…

● It is primarily for HR to create an environment, of

awareness amongst the male & female employees, make

policies on the subject matter and communicate to the top

management about this statutory compliance.

144
“Country and Nation which
do not respect women have
never become great nor will
ever be in future”.
Swamy Vivekananda

145
 THANK YOU

146
Sexual Harassment at Workplace – Adv. Bharat Goyal