Points to Ponder

1. How can a simple ‘pat on the cheek’ be misread as sexual harassment?
   Ans : Under the POSH law, any act of touching a lady, which is found offensive by her, is sexual harassment. This is called yellow zone behaviour and needs to be avoided.
2. The VP HR stated that he acted out of fatherly affection. How can the act still be termed as sexual harassment?
   Ans : Under law, it is the lady's perception and not the man's intention which matters. Any act of physical touching, perceived by a lady as sexual harassment, shall be termed as such.
3. Can the VP-HR be booked for sexual harassment even after an apology?
   Ans : Yes. In this cases had the lady refused to accept the apology, an enquiry could have been set up and disciplinary action could have been recommended against the VP-HR

Points to Ponder

1. Was the lady justified making allegations of discrimination against TERI and resigning and even though the ICC had found him guilty of misconduct?
   Ans: Yes, the lady’s accusation that TERI had failure to protect her interests & protest resignation was justified since Mr. X continued to be at the helm of affairs well after being indicted of sexual harassment.
2. What further action can the lady complainant seek legally?
   Ans: Under Section 354(A) of the Indian Penal C she can seek rigorous punishment for Mr. X that includes imprisonment upto 3 years or fine or both.

Addendum: Lady’s Name & Identity May Not Be Disclosed

Mr. X case: HC allows woman's plea to remove her name Press Trust of India | New Delhi Oct 28, 2015 08:32 PM IST
The Delhi High Court today allowed a plea by a woman, who has accused TERI Director General Mr. X of sexual harassment, seeking removal of her name from a petition seeking cancellation of the anticipatory bail granted to him.
Justice S P Garg said the woman be now referred to as 'Ms X' in the proceedings pending before him.

Points to Ponder

1. Is it safe to assume that senior managements are responsible and mature and do not need formal POSH Training?
   Ans: Nothing could be further from the truth. The POSH Act is the only law in India that requires each and every employee of the organization to be trained in and made aware of, irrespective of the employee’s rank and stature.
2. Within what time-frame is the Employer bound to take disciplinary action against Sujit?
   Ans: Within 60 days of receiving the ICC’s recommendations.
3. What can the lady do next if the Employer does not implement the ICC’s recommendations?
   Ans: She can complain again to the ICC and the ICC can again enquire into the matter or forward her complaint to the police as the case may be.

Points to Ponder

1. Amit had only complimented the lady verbally and only suggested the inclusion of his name in her projects. How can the ICC find him guilty of sexual harassment when he had actually done nothing?
   Ans. Amit was guilty of creating an offensive and hostile environment for the lady. Even though she made it clear that his attention was unwelcome he continued to impose himself on her. The POSH law gives paramount importance to a lady’s perception and assessment whether a certain situation is uncomfortable for her. Hence the ICC can certainly enquire into her complaint.
2. What action can the ICC recommend against Amit?
   Ans. The ICC can recommend official censure/ reprimand of Amit’s actions and POSH sensitization training, among other options. Amit can also be sent on forced leave pending completion of his POSH training.

Points to Ponder

1. Is it a case of Sexual Harassment?
   Ans. Yes, it is a case of sexual harassment where a hostile work environment is being created for the complainant.
2. What should an employer do to avoid such situation at workplace?
   Ans. The employer must arrange regular awareness programmes to sensitize employees so that they learn to differentiate between casual jokes & sexual harassment. There must be non-obtrusive teasers and posters displayed prominently in the workplace so that employees learn where to draw the line.
3. Can ICC award her the transfer as requested?
   Ans. Yes, ICC is empowered to recommend transfer of complainant on her request during the pendency of her complaint.

Points to Ponder

1. Will this case come under Quid Pro Quo category of Sexual Harassment?
   Ans.  Yes, it is a clear case of Quid Pro Quo as Complainant was humiliated and abused upon refusal to give sexual favours to her supervisor.
2. In the above case should ICC approve the termination order against X or keep it pending till completion of enquiry?
   Ans. It would be prudent to keep her termination on hold because she has alleged malafide and lodged a complaint against the same person who has terminated her. If the ICC does not act, she can lodge an FIR under Sec 354A of the IPC making the company and the management liable to the criminal offence of sexual harassment. She can also drag the company and management along with the accused to court for criminal abetment of sexual harassment and not taking action on her complaint. She can also approach the Labour Department seeking re-instatement. Hence the company can avoid potential legal hassles and unfavourable publicity by keeping the termination letter on hold until the inquiry is completed.
3. During pendency of enquiry Amrita requested that X be removed from the position from her supervisor and should not be responsible for appraising her work performance. ICC & management refused to do so. Was the action of management in line with the 2013 Act?
   Ans.   No, the management violated Rule 8 which provides that upon receiving a written request from the complainant, ICC may recommend to the employer to 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. Management should have allowed her request to remove X from the position of her supervisor, as the same has been provided for in the 2013 Act & Rules.

Points to Ponder

1. Will this case come under Quid Pro Quo category of Sexual Harassment?
   Ans.  Yes, it is a clear case of Quid Pro Quo as Complainant was humiliated and abused upon refusal to give sexual favours to her supervisor.
2. In the above case should ICC approve the termination order against X or keep it pending till completion of enquiry?
   Ans. It would be prudent to keep her termination on hold because she has alleged malafide and lodged a complaint against the same person who has terminated her. If the ICC does not act, she can lodge an FIR under Sec 354A of the IPC making the company and the management liable to the criminal offence of sexual harassment. She can also drag the company and management along with the accused to court for criminal abetment of sexual harassment and not taking action on her complaint. She can also approach the Labour Department seeking re-instatement. Hence the company can avoid potential legal hassles and unfavourable publicity by keeping the termination letter on hold until the inquiry is completed.
3. During pendency of enquiry Amrita requested that X be removed from the position from her supervisor and should not be responsible for appraising her work performance. ICC & management refused to do so. Was the action of management in line with the 2013 Act?
   Ans.   No, the management violated Rule 8 which provides that upon receiving a written request from the complainant, ICC may recommend to the employer to 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. Management should have allowed her request to remove X from the position of her supervisor, as the same has been provided for in the 2013 Act & Rules.

Points to Ponder

1. Is Shilpa justified in filing complaint against other male colleagues apart from the supervisor?
   Ans. Yes, the action of other male colleagues in forcing/insisting her to go the supervisor’s office for their own benefit also amounts to sexual harassment since they co-operated with the supervisor in creating a hostile environment for Shilpa. They can definitely be held liable for the same.
2. Will the supervisor’s behavior amount to sexual harassment?
   Ans. Yes, the supervisor’s behaviour amounts to sexual harassment because despite being unwelcome, he repeatedly tried to use his position to impose his company on her, beyond duty hours. Such behaviour is tantamount to intimidation and creating a hostile work environment for her.

Points to Ponder

1. Why was Lila’s complaint not forwarded to the ICC?
   Ans: This is a classic case of an organization hesitating to act on a complaint against senior executives. This is clearly against the provisions of the POSH Act, which states that complaints against the Employer or senior-most executives may be forwarded to the Local Complaints Committee set up by the labour office. Attempts to suppress a genuine complaint will also rebound on the organization, given the fact, that a lady can lodge a police complaint under the IPC provisions or file a case in court
2. Was Mr X absolved of his offence of sexual harassment just because the ICC did not take up the complaint against him?
   Ans: No, not at all! The police registered a case against him under Section 354 (outraging the modesty of a woman) and 354 (A) (sexual harassment) of the Indian Penal Code (IPC) and he was forced to apply for anticipatory bail.

Points to Ponder

1. Is Priti justified in filing a Sexual harassment complaint in the above scenario?
   Ans. Yes, whether an act amounts to sexual harassment or not is subjective to the way it is perceived by the complainant and not the way it is intended by the respondent. Therefore any unwelcome act perceived by complainant as sexual harassment will amount to sexual harassment under the Act. In the instant case an unwelcome comment on a professional networking site will amount to sexual harassment.
2. Is there a difference between complimenting somebody and sexual harassment at the workplace?
   Ans. Yes, there is a difference but the line between the two is very thin. Any remark that can potentially be viewed as sexist or offensive should be avoided.

Points to Ponder

1. Will Lavanya succeed in her case against the company?
   Ans. No, because she never took up her case with the company or the ICC. The company has constituted an ICC under the 2013 Act and was active in spreading awareness among employees on POSH. The complainant Lavanya neither filed a written complaint before the management or ICC nor even informed them and in the absence of a written complaint the ICC could not proceed against the respondent. Therefore in this case company cannot be held liable for inaction or abetment of the offence of sexual harassment.
2. Under what circumstances can a company be held liable as abettor of the offence of sexual harassment?
   Ans. Company can be held liable as abettor of the offence of sexual harassment under the Indian Penal Code in circumstances wherein it failed to assist the complainant in filing a complaint against sexual harassment either before ICC or before the Police under the Indian Penal Code. Where no action is taken by the company upon the complaint of sexual harassment by the complainant, the company will be deemed to have abetted or assisted the respondent in the act amounting to sexual harassment.

Points to Ponder

1. What steps should have been taken by the Company to safeguard itself against such situations wherein female complainant proposes conciliation?
   Ans. The ICC must record the complaint in writing. Thereafter if conciliation is requested by the complainant, then that also must be in writing and the outcome of such conciliation must also be recorded. This documentation will serve as a record of action taken by the company on receiving the complaint and will prima facie safeguard the company against such malicious complaints.

Points to Ponder

1. Is it necessary to have a senior level female employee as a presiding officer of the ICC constituted under 2013 Act?
   Ans. Yes, as per Section 4 of the 2013 Act it is mandatory to have a senior level female employee as a presiding officer of the Internal Complaints Committee (ICC). Any report formulated by an ICC not headed by a senior level female employee must be disregarded as a whole.
2. What should be done if no senior level female employee exists in that office or branch?
   Ans. If a senior level female employee is not available in a particular office then, another senior lady can be nominated from any other branch or office of the same employer or under the control of the same employer.
      In extreme situations, if no senior lady employee is available at any branch of the establishment then company must approach the District Officer or the Labour Commissioner seeking guidance before appointing the presiding officer of the ICC.

Points to Ponder

1. Is ICC justified in accepting such a complaint almost after 2 years of the alleged incidence?
   Ans. No, ICC should not have allowed the complaint after 2 years from the date of incident. The original complaint did not disclose any incident of sexual harassment as defined in the Act of 2013 and within the period of limitation prescribed under Section 9 of the Act. Therefore the ICC acted hastily.Any incident must be reported within 3 months of its occurrence. ICC has been empowered to extend the time limit for a maximum period of 3 months, with reasons recorded in writing, after the expiry of the first 3 months from the date of incident.

Points to Ponder

1. Is ICC justified in refusing W 3 months paid leave during pendency of complainant before it? Ans. No, ICC is not justified in doing the same and it is against the provisions contained in the 2013 Act. It should have recommended grant of 3 months paid leave to the complainant in the present circumstances.

Points to Ponder

1. Is it a case of Sexual harassment as defined under 2013 Act?
   Ans. Though it is a clear case of sexual harassment it will not fall under the purview of the 2013 Act since the Act only relates to Sexual Harassment of Women at workplace. Therefore technically M will not be able to get any relief under the 2013 Act.
2. Does M have recourse to any grievance redressal over and above the 2013 Act?
   Ans. Yes, M needs to check if the Bank has a gender neutral policy on sexual harassment under which male employees can also seek redressal. In fact, Section 28 of the 2013 Act provides that the provisions of this Act are in addition to and not in derogation of any existing law for the time being in force.
      If such a gender neutral policy does not exist for the Bank’s employees, M can seek relief by applying to the general Grievance Redressal Committee or to the Ethics Committee of the company.

Points to Ponder

1. In the above case should the facility manager ask her to file a written compliant before taking any action?
   Ans. Yes, before taking any action, facility manager should ask her and assist her in filing a written complaint. This is so because under the Act, ICC can proceed with conciliation or enquiry only upon a written complaint of Sexual Harassment. Further, management is also unable to take disciplinary action without a written complaint.
2. If she agrees to file a written complaint, but again requests to be transferred to a different location instead of enquiry by ICC, what should the facility manager do?
   Ans. In such a scenario, the facility manager must forward both her written complaint as well as her request to get transferred to the ICC. ICC must record the same and initiate conciliation proceedings wherein they can recommend transfer of Radha to another location on her request. Apart from this, it is also advisable to summon the GM to the ICC proceedings and pass a written reprimand for violating the code of conduct. Management may be asked to file the reprimand in his service file. This will ensure that such misconduct is not taken lightly or repeated by the GM.
3. If Radha refuses to file a written complaint but insists on transfer then what should be done by the facility manager?
   Ans. If she refuses to file a written complaint but insists on the transfer then ICC cannot be asked to intervene. However, the facility manager should keep the management informed. It would be prudent for the management to question the GM in this regard and if, prima facie, a case is found against him, he must be officially reprimanded to ensure that such misconduct is not repeated.
4. If Radha files written complaint and wants to go ahead with the enquiry what should the facility manager & ICC do?
   Ans. In such a situation facility manager should forward her complaint to the ICC and ICC must proceed with the enquiry. Based on the enquiry ICC must send its recommendations to the management as provided for in the Act & Rules.

Points to Ponder

1. What action can be taken against Sunita & her friend by ICC in the present case?
   Ans. In cases where it is actually proved that the complaint of sexual harassment is false & malicious then ICC is entitled to make the same recommendations for punitive action against the malicious complainant as it can make against the respondent. Under Rule 9 ICC can recommend either termination of Sunita’s service; or withhold her promotion & increment or ask her to pay damages to Rakesh; or ask for a written apology or any other disciplinary action provided in the service rules.
2. In general, if an aggrieved women fails to prove her case, will it amount to malicious complaint?
   Ans. No, merely not being able to prove the case will not amount to malicious complaint. Malicious complaint must be proved by a separate enquiry in this regard. The same has been provided under Section 14 of the Act.

Points to Ponder

1. Can the lady employee file a complaint against Dheeraj, who is a contract employee, to the ICC?
   Ans: Yes, she can. The definition of “employee” under the Act includes contractor employees associated with the workplace. Hence, any sexual misdemeanour by a contractor employee shall be treated as a subject fit for the ICC’s enquiry.
2. The ICC wishes to serve the complaint on Dheeraj and summon him for the enquiry. However, Mita is reluctant to face Dheeraj and refuses. Can ICC pass the order in her favour without summoning Dheeraj?
   Ans: No the ICC cannot pass an ex-parte order in Mita’s favour without giving Dheeraj an opportunity to be heard. Under the Act, both parties must be given an opportunity to be heard.