POSH Act | Any Inappropriate Or Unwelcome Behaviour Affecting Women Is "Sexual Harassment" Regardless Of Intent: Madras HC

The Madras High Court has emphasised that under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act [PoSH Act], the act of sexual harassment itself is given significance and not the intention behind the same. Justice RN Manjula thus observed that in cases under the Act, what has to be looked at is not what the accused thought was 'decent' but how such a person made a person of another gender feel about his actions. Thus, the court held that if any action or gesture was not received well and was inappropriate and felt as unwelcoming behaviour, it would fall within the definition of sexual harassment. “The definition of “sexual harassment” as it is seen from the PoSH Act has given significance to the act than the intention behind the same. In the event of such actions are reported as criminal offense then the prosecution may be expected to prove the intention also. It is the fundamental discipline and understanding with which the employees of different gender are expected to interact with each other where decency is the yardstick and nothing else. While speaking about the decency it is not the decency which the respondent thinks within himself, but how he makes the other gender to feel about his actions,” the court said. The court thus held that any gesture putting the opposite sex in an embarrassing or uneasy position were unwelcome gesture within the meaning of the Act. “If something is not received well and it is inappropriate and felt as an unwelcome behaviour affecting the other sex namely the women, no doubt it would fall under the definition of “sexual harassment”,” the court added. The observations were made in a plea filed by HCL Technologies challenging an order of the Principal Labour Court, setting aside the recommendations of HCL's Internal Complaints Committee against one of its Assistant General Managers. The allegation against the AGM was that while working as the Service Delivery Manager, he had indulged in unwelcome physical contact by hovering close to one of the woman employees when she was seated. Another woman employee complained that the respondent had verbally harassed her by repeatedly asking her physical measurements and making her feel extremely uncomfortable. A third employee complained that the respondent kept on asking her about her menstrual cycles. Upon receiving the complaints, enquiry was initiated and the ICC found the respondent's behaviour inappropriate, amounting to sexual harassment and recommended him to be made an individual contributor without giving any supervisory role along with making him ineligible for any pay rise or benefits for 2 years. The respondent challenged the recommendations on the grounds of violation of principles of natural justice and the Principal Labour Court reversed the findings of the ICC against which the present petition was filed. Senior Advocate Srinath Sridevan (for HCL) argued that the Labour Court had not appreciated the materials before it. He pointed put that the respondent had chosen to challenge the recommendations only after his termination while the recommendations were made much prior. He added that the ICC had conducted the enquiry complying with the principles of natural justice and a fair opportunity was also given to the respondent. He pointed out that the principles of natural justice are amenable to the facts and circumstances of the case and no rigid formula could be applied in every case. Senior Advocate KM Ramesh (for respondent), on the other hand argued that he was not given any statement supporting the complaint or given the answers of the witnesses during the cross examination. He also contended that the video footage of the witness examination was not given to him. With respect to the first allegation, it was argued that the respondent was only doing apart of his job which included supervising the work of the employees. With respect to the second allegation, it was submitted that the measurements were only sought as the company was handing out coats for all its female employees. The court, on perusing the materials, noted that when charges of sexual harassment was concerned, a rigid formula of standards of reasonableness could not be adopted as the privacy, secrecy and the safety of the victims was equally important. Thus, the court observed that the fairn4ess formula, in such cases, could be flexible. In the present case, the court was satisfied that the ICC had struck a balance and had acted with fairness and there was no necessity to interfere with the order of the ICC. “So far as the charges of sexual harassment is concerned, the privacy, secrecy and safety of the victims also need to be given priority and hence the fairness formula to be adopted during such inquiry can be flexible and suiting to the nature of the complaint, type of the institution and even the conduct of the parties ...

POSH Act | Any Inappropriate Or Unwelcome Behaviour Affecting Women Is "Sexual Harassment" Regardless Of Intent: Madras HC

Upasana Sajeev

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