Bombay High Court Stresses Fair Inquiry in Sexual Harassment Cases: Saurabh Kumar Mallick v. The Comptroller & Auditor General of India & Ors.

In a notable judgment upholding the principles of procedural fairness under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act), the Bombay High Court in Saurabh Kumar Mallick v. The Comptroller & Auditor General of India & Others highlighted the critical need for Internal Committees (ICs) to conduct impartial, transparent, and legally sound inquiries. The Court emphasized that while the POSH Act aims to protect women from harassment, it equally mandates adherence to natural justice for both complainants and respondents.

The case involved Saurabh Kumar Mallick, a senior official, who challenged the findings of an Internal Committee that had found him guilty of sexual harassment. Mallick argued that the inquiry was conducted in violation of the principles of natural justice, including denial of opportunity to present his defense, absence of cross-examination, and lack of proper documentation of evidence.

The Bombay High Court carefully reviewed the facts and found merit in the petitioner’s claims. The Court observed that any inquiry conducted under the POSH Act must strictly follow the guidelines laid down by the Supreme Court in Vishaka v. State of Rajasthan and the statutory framework of the Act itself. It ruled that merely going through the motions of an inquiry without offering the respondent a fair chance to contest the allegations would render the proceedings invalid.

The Court further underscored that the Internal Committee functions in a quasi-judicial capacity and is duty-bound to ensure neutrality, transparency, and procedural integrity. This includes providing the respondent with a copy of the complaint, giving sufficient time for response, allowing cross-examination when necessary, and documenting findings with clear reasoning.

This judgment is particularly significant because it brings attention to a sometimes-overlooked aspect of POSH implementation—ensuring that the process is not only complainant-friendly but also fair to the person accused. The Court warned against treating the IC as a mere administrative body and stressed the need for IC members to be adequately trained in handling sensitive cases within the boundaries of the law.

For organizations, this case serves as a critical reminder to design POSH policies and procedures that comply not just with the letter of the law but with the spirit of justice. Employers must ensure that ICs conduct thorough, unbiased inquiries and respect the legal rights of both parties involved.

In conclusion, the Bombay High Court’s ruling in Saurabh Kumar Mallick reaffirms the importance of balanced, fair, and legally sound POSH inquiries. It reinforces the dual mandate of the POSH Act: to create safe workplaces while preserving the principles of natural justice and preventing misuse of the law.

Steps that HR Department Must take To Prevent Sexual Harassment At Work.

A large portion of the workplace in India is plagued by the problem of sexual harassment. In order to prevent it, businesses should take precautions, and they should also be prepared to address it if it does. The HR department is in charge of making sure compliance. To make the workplace safe for employees, they can implement Posh rules and take the ten steps listed below.

HR should make sure that the business has several reporting options, including anonymous reporting, for sexual harassment. They must also ensure that the staff is aware of these options, whatever they may be.

A human resources professional must understand that harassment can affect anyone, regardless of gender, sexual orientation, or other identifiers. Many LGBTQ employees are especially susceptible to harassment, whether it be sexual or otherwise. Sexual harassment can happen to anyone, even straight males in powerful positions inside the organisation. Every report should be taken seriously, and every investigation should start with the purpose of learning the truth rather than working backwards from a presumptive conclusion. If there is one thing that HR departments want, it is to be viewed as "the good policemen" rather than another barrier. 

The Posh policy must cover bystander training. This might be a good way to raise issues before they become outright harassment. It's a more recent idea, but college campuses have begun applying it to prevent sexual assault. Employees who have received bystander training are taught when and how to step in to stop harassment. It can counteract what is referred to as "the bystander effect," when individuals are less likely to intervene in a quarrel when others are present because they assume others will do so first. Now, it is up to HR to provide employees with the confidence and security they need to step in during a conflict.

Status of Local Committee formation under POSH.

According to Section 6(1) of the Act, "Every District Officer shall constitute in the district concerned a committee to be known as the "Local Complaints Committee" to receive sexual harassment complaints from establishments where the Internal Committee has not been formed because it has fewer than ten employees or if the complaint is against the employer himself."

The Local Complaints Committee was changed to become the Local Committee in May 2016, broadening its mandate from merely handling complaints to one that requires it to act proactively to combat sexual harassment.

According to a report by the Martha Farrell Foundation, POSH policies are not generally being followed to its fullest extent (2018). In accordance with this research, 655 districts had 56 percent of requests for data sets from operating Local Committees ignored. Only 29% of districts claimed to have created LCs, and 15% of those districts still hadn't done so.

43% of respondents from the unorganized sector said they had at least once felt uneasy around a coworker. It is crucial to recognize the part stigma plays. The stigmatization of women increases with their level of marginalization, and many may not have the backing of their families to come forward and report workplace sexual harassment.

The Local Committee has the potential to sustain the spirit of the Vishakha principles through efficient execution. Since 95% of women in India's workforce are employed in the unorganized sector, strengthening the LC's operations would help the country's deeply ingrained patriarchal systems while ensuring institutional accountability.

Breaking the Silence: Addressing Retaliation in the Workplace.

Retaliation against employees who report sexual harassment or misconduct is a serious issue that can perpetuate a culture of fear and silence. In this article, we examine a hypothetical case study involving retaliation against a whistleblower and discuss the importance of protecting employees who come forward with complaints.

Case Study : Retaliation

Scenario: Jane, a diligent employee, finds herself in a challenging situation after bravely reporting sexual harassment by her colleague. Instead of receiving support and protection, Jane experiences ostracism and denial of opportunities for advancement within the company. The hostile environment she faces leaves her feeling isolated and discouraged.

Response: Retaliation against whistleblowers not only undermines the integrity of the reporting process but also creates a toxic work environment that can have far-reaching consequences. Here's how organizations can respond effectively to instances of retaliation:

1. Thorough Investigation: The first step in addressing retaliation is to conduct a thorough investigation into the whistleblower's claims. HR should take Jane's allegations seriously and initiate an impartial investigation to determine the validity of her complaints. It's crucial for HR to gather evidence, interview relevant parties, and ensure confidentiality throughout the process.

2. Provide Support: Whistleblowers like Jane often face significant emotional and professional challenges as a result of their decision to come forward. It's essential for organizations to provide support and resources to help whistleblowers navigate the aftermath of their disclosure. This may include access to counseling services, legal assistance, or temporary reassignment to a different department to minimize the risk of further retaliation.

3. Address the Hostile Work Environment: Retaliation can manifest in various forms, including ostracism, denial of opportunities, or even direct threats. Organizations must take decisive action to address the hostile work environment and ensure that whistleblowers feel safe and supported in their workplace. This may involve counseling sessions, mediation, or disciplinary action against individuals engaged in retaliatory behavior.

4. Implement Policies Against Retaliation: To prevent retaliation and protect whistleblowers, organizations should implement clear policies and procedures that explicitly prohibit retaliation against employees who report misconduct. These policies should be communicated to all employees, enforced consistently, and accompanied by training sessions to raise awareness about the importance of protecting whistleblowers.

5. Foster a Culture of Accountability: Ultimately, creating a workplace culture that values transparency, integrity, and accountability is essential for preventing retaliation and fostering trust among employees. Organizations should lead by example, demonstrating a commitment to upholding ethical standards and supporting employees who speak out against wrongdoing.

In conclusion, addressing retaliation in the workplace requires a multi-faceted approach that prioritizes protecting whistleblowers, fostering a culture of accountability, and creating a safe and supportive work environment for all employees. By taking proactive measures to address retaliation and support whistleblowers, organizations can promote a culture of transparency and integrity that benefits everyone. Together, we can break the silence and create workplaces where employees feel empowered to speak out against harassment and misconduct without fear of reprisal.

Creating a Safe and Inclusive Workplace: Combating Hostile Work Environments.

Sexual harassment in the workplace takes various forms, and one prevalent manifestation is the creation of a hostile work environment. In this article, we explore a hypothetical case study involving a hostile work environment characterized by sexually explicit jokes, comments, and images, and discuss effective strategies for addressing and preventing such behavior.

Case Study : Hostile Work Environment

Scenario: In an office environment, sexually explicit jokes, comments, and images are commonplace, creating a hostile work environment that affects several employees' well-being and productivity. Despite its detrimental effects, the behavior persists, leading to discomfort and distress among employees.

Response: The situation described in this case study highlights the urgent need for organizations to address and eradicate hostile work environments. Here's how organizations can respond effectively:

Implement Robust Policies: The first step in addressing a hostile work environment is to establish clear and comprehensive policies against sexual harassment. These policies should explicitly prohibit behaviors such as sexual jokes, comments, or images that create an intimidating, hostile, or offensive work environment. It's crucial for these policies to be communicated to all employees and enforced consistently.

Conduct Regular Training Sessions: Education and awareness are key components of preventing sexual harassment and fostering a culture of respect and inclusivity. HR should conduct regular training sessions to educate employees on appropriate workplace conduct, including what constitutes sexual harassment and the consequences of engaging in such behavior. These training sessions should be interactive, engaging, and tailored to address the specific needs of the organization.

Establish Confidential Reporting Mechanisms: It's essential for employees to feel safe and empowered to report instances of sexual harassment or a hostile work environment without fear of retaliation. Organizations should establish confidential reporting mechanisms, such as anonymous hotlines or online reporting platforms, to ensure that employees can report harassment discreetly and without fear of reprisal.

Prompt and Impartial Investigations: When complaints of harassment arise, it's crucial for HR to initiate prompt and impartial investigations into the allegations. This involves interviewing the parties involved, collecting evidence, and assessing the credibility of the complaints. HR should handle investigations with sensitivity and ensure confidentiality to protect the privacy of all parties involved.

Take Disciplinary Action: If the investigation substantiates the allegations of sexual harassment or a hostile work environment, organizations must take swift and appropriate disciplinary action against the offenders. This may include counseling, training, suspension, demotion, or termination, depending on the severity of the misconduct and the organization's policies. It's essential for organizations to send a clear message that harassment will not be tolerated and that perpetrators will be held accountable for their actions.

In conclusion, addressing a hostile work environment requires proactive efforts from organizations to establish clear policies, provide comprehensive training, and create a culture of respect and inclusivity. By implementing these strategies and taking decisive action against harassment, organizations can foster a safe and supportive work environment where all employees can thrive. Together, we can work towards creating workplaces free from harassment and discrimination.

Sexual Harassment at Work

PoSH (Prevention of Sexual Harassment )Awareness Session helps organisations in a big way in

1) Preventing and Discourage sexually harrasement at work

2) Encouraging victims to file grievances

3) Encouraging coworkers to understand their role in creating safe work environment.

4) Highlighting the Gender Neutral policy aspects

Glad to have delivered at Cloudnine Group of Hospitals ~Noida

A detailed employee and manager session highlighting key aspects of POSH ACT 2013 through case studies , Videos and Quiz .

Thank you Trisha Singh and Saloni

for organising,participating and partnering in the session. It is such a inspiration to see how the HR and leadership team is working together to ensure this organisation continues to be a workplace of choice in healthcare sector.

Voice of SASHA 🤝POSHADVO Kanti Joshi 🤝Adv Kanchan K.

Kanchan Khatana And Associates

Sexual Harassment at Workplace

Posh Training

Best POSH consultant in India

POSH ACT 2013 

Sexual Harassment at Workplace

POSHADVO has been founded to help keep workplaces free of sexual abuse across all sectors in the country.

POSHADVO firmly believes, as an organization, that sexual harassment is a serious denial of the right to equality, dignity and respect. Sexual abuse at work is something that most people routinely witness, but many do not openly speak about. Typically, this is for fear of losing their job, facing society's scorn, being caught up in never-ending court action or for other unspecified reasons.

Posh @ Workplace

Gender equality in all dimensions is a basic human right and the Constitution of India (“Constitution”) guarantees all its citizens equality of status and opportunity. Sexual harassment is considered as a violation of a woman’s fundamental right to equality, which right is guaranteed by Articles 14 and 15 of the Constitution. The Constitution also provides every citizen the ‘right to practice or carry out any occupation, trade or business, which includes the right to a safe environment, free from all forms of harassment.

PoSH in Higher Education Institutions in India

Poshadvo

On July 25, 2022, an Odisha college student accused the school's physics instructor of rape and sexual harassment. The accused lecturer, who was the institution's reader, had also held the role of NCC officer in the Naval wing. Despite the female student coming to the institute with a formal complaint, the school's internal committee did not discover any proof of the claims she claimed. The probe didn't start until the Higher Education Department became aware of the situation. 

A Presidency University student from Kolkata filed a formal complaint with the internal committee of the university accusing Mahitosh Mandal, the former head of the department, of sexual harassment on July 17, 2022. 

It is believed that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, is essential for protecting female employees from sexual harassment at the workplace. It is significant to highlight that educational institutions play a significant role in this while also including formal and informal workspaces and that the law is not confined to the corporate environment in the formal sphere. 

A federal law that forbids sexual harassment of female employees and students in higher education institutions is the UGC (Prevention, Prohibition, and Redress of Sexual Harassment of Women Workers and Students in Higher Education Institutions) Regulation, 2015. 

In an effort to make changes, the UGC (Prevention, Prohibition, and Redress of Sexual Harassment of Women Workers and Students in Higher Education Institutions) Regulation, 2015 requires all universities, colleges, and deemed universities to adhere to a set of rules to ensure that the campuses are free from sexual harassment.

In order to prevent gender bias, the term "students"assures that the legislation covers every person registered in a specific higher education institution, regardless of their gender. 

An internal complaints committee must be established at every higher education institution in order to address sexual harassment claims. It must be dubbed the ICC and adhere to UGC-mandated rules if a body already exists with this goal.

What is Sexual Harassment and Remedies

What amounts to sexual harassment?

In 1997 in Vishaka Vs. State of Rajasthan and others, for the first time sexual harassment had been explicitly- legally defined as an unwelcome sexual gesture or behavior whether directly or indirectly as

1. Sexually coloured remarks

2. Physical contact and advances

3. Showing pornography

4. A demand or request for sexual favors

5. Any other unwelcome physical, verbal/non-verbal conduct being sexual in nature.

Sexual assault was first established as a distinct criminal behavior in this historic lawsuit. The unwelcomeness of the behavior is a key element in sexual harassment. As a result, the effect of certain conduct on the recipient becomes more important than the perpetrator's purpose, which must be weighed.

In any kind of organization, whether government, private, or public, such behavior instils anxiety in the minds of workers that if they do not complete the job assigned to them, they will become victims of sexual assault, and thereby induces fear in their minds. On the other hand, the employer could threaten the employee with a move, promotion, or other benefit. In the business world, it has been observed that employers would ask for a favor in exchange for a position, a relocation, or a bonus, or even to raise their pay. Much of this amounts to sexual harassment when it is done against the person's wishes, and the workers who use the aforementioned services adhere to the employer's terms.

In other words, it is unfair where a woman has fair reasons to assume that her objection will harm her job or jobs, like hiring or advancement, or where it establishes a hostile work atmosphere. If the survivor refuses to agree to the actions in question or expresses any objections to it, negative penalties will be imposed.

Remedies Available to Victim

In India there is no specific law relating to Sexual Harassment at workplace but there are certain sections in the Indian Penal Code (IPC) and Constitution and certain other laws and Acts that protect the women’s from sexual harassment at workplace and they are as follows:

Section 354, IPC deals with assault or criminal force to a woman with the intent to outrage her modesty and lays down that:

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or both.

In cases where the accused sexually harasses or insults the modesty of a woman by way of either- obscene acts or songs or- by means of words, gesture, or acts intended to insult the modesty of a woman, he shall be punished under Sections.294 and 509 respectively.

Under Sec.294 the obscene act or song must cause annoyance. Though annoyance is an important ingredient of this offence, it being associated with the mental condition, has often to be inferred from proved facts. However, another important ingredient of this offence is that the obscene acts or songs must be committed or sung in or near any public place.

Section 509, IPC deals with word, gesture or act intended to insult the modesty of a woman and lays down that: Whoever intending to insult the modesty of any woman utters any word, makes any sound or gesture, or exhibits any object intending that such word or sound shall be heard, or that such gesture or object shall be seen by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or both. (Cognizable and bailable offences).

Civil suit can be filed for damages under tort laws. That is, the basis for filing the case would be mental anguish, physical harassment, loss of income and employment caused by the sexual harassment.

Under the Indecent Representation of Women (Prohibition) Act (1987) if an individual harasses another with books, photographs, paintings, films, pamphlets, packages, etc. containing "indecent representation of women"; they are liable for a minimum sentence of 2 years.

Section 7 (Offenses by Companies) holds companies where there has been "indecent representation of women" (such as the display of pornography) on the premises guilty of offenses under this act, with a minimum sentence of 2 years.