Madras HC sets aside deadline to report serious offences under POSH, assault can be investigated anytime

The court ruled that serious incidents of sexual harassment causing mental trauma must be treated as 'continuing offence', which need not be reported within 3 months, as mandated by the POSH Act.

File photo of Madras HC | ANI

New Delhi: A serious isolated incident of sexual harassment that results in “grave mental trauma” and “stress” to the victim can be reported and investigated anytime, and not necessarily within three months of the alleged offence, the Madras High Court has said.

In a liberal interpretation of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (POSH) to cover instances involving serious allegations against the alleged offender, the court ruled that victimisation of a woman at workplace would be treated as a “continuing offence”, if the accused is charged with sexual assault or molestation.

Hence, the victim need not meet the legal mandate under section 9 of POSH Act that sets a three-month deadline to report the misconduct and seek action.

Justice D. Bharatha Chakravarthy gave the significant decision, while rejecting a petition of a police officer to quash an enquiry report that indicted him for allegedly sexually assaulting his female colleague. The officer had challenged the proceedings on the ground that the complaint was lodged four years after the alleged misconduct had taken place.

The high court said that the enquiry report could not be set aside on the ground that the complaint was belated and against the three-month deadline norm.

However, the court accepted his second ground of challenge to the probe, which the police officer said, was in violation of the principles of natural justice. He claimed he was not given an opportunity to cross-examine the complainant and two crucial witnesses called during the enquiry.

Referring the case back to the internal complaints committee (ICC) that indicted the officer, Justice Chakravarthy set a timeline for the panel to conclude its task and give a new report after examining the evidence afresh.

The court drew a distinction between a case of an isolated incident of misconduct, such as passing lewd or inappropriate remarks, and a case where serious allegations of sexual assault or molestation are made.

It was observed that in the first category, the victims cannot be permitted to “withhold and exercise their right to remedy to their wish and time”, which means that the complainant has to strictly comply with the deadline provision in POSH Act.

However, in case of serious allegations, the same would be a “continuing misconduct”, “until the situation is redressed or brought to the notice of the appropriate authority”. In this circumstance, every day would give rise to a fresh cause of action.

This is because such an act of misdemeanour on the part of the aggressor pushes a woman to a “dilemma” not to reveal or complain due to fear of “secondary or tertiary victimisation”, Justice Chakravarthy observed.

“She is unable to withstand, swallow or suppress the same, then that state of the victim fits the definition of undergoing continuous sexual harassment,” he said.

 

The petition

According to the police officer, the complainant had alleged that the incident took place in 2018, while she had sought an enquiry under POSH in 2022. He contended that the enquiry was vitiated because the complaint was filed four years after the alleged act, and not within three months.

This deadline, he argued, could be extended further by another period of three months by the committee that is set up under POSH to deal with internal complaints of sexual harassment. However, no such request was made, he told the bench.

The Tamil Nadu government contested the petitioner’s argument and said that the victim did not approach the internal complaints committee (ICC), but lodged her grievance with the Superintendent of Police, who then referred the matter to the ICC. The State argued that the three-month deadline would not apply in the said matter because the complaint was a reference made by the employer.

The court was also informed about the FIR alleging rape, which was lodged at the All Women Police Station in Ooty against the accused, soon after the woman reported the matter to the authorities. They said that the complainant did not lodge the complaint earlier due to fear.

On the complainant’s cross-examination by the accused, the State conceded that the ICC did not let him do so due to the “frailty of the victim”. However, his questions were put across to the victim and other witnesses, who gave their answers that were communicated to him. Therefore, the State maintained, there was no non-compliance of the law as far as the procedure is concerned.

The importance of POSH Act

In its 40-pages judgment, the court addressed the menace of sexual harassment at workplace and chronicled the development of the law over a period of time.

Calling it a pervasive and a hidden social problem, it noted that sexual harassment encompasses a wide range of behaviours that can cause “considerable harm to women”, “reduce them to sexual objects”. Sexual harassment at workplace “reinforces sexual stereotypes and inappropriate gender behaviour”, it asserted.

Apart from undermining a woman’s authority at the workplace, it can have “deleterious consequences” for her mental and physical health, and in many instances, the victims have reported depressive symptoms a decade later, the judgment noted, making a case to broaden the law’s application.

In the Indian context, Justice Chakravarthy added, women remain silent from the fear of being labelled as troublemakers and spoiling the organisation’s reputation. However, this has a serious consequence for women workers as a group themselves, and a telling effect on the workforce of every organisation, and as a result, on the economy of the nation itself.

Talking about the importance of the POSH Act, the bench said that it is not just meant for remedial action, but to prevent and provide protection to women at the workplace.

In the present case, the court found that the complainant had suffered from extreme mentally agony post the assault, which had increased day by day. It was upon counselling by her co-employees that she opened up to talk about the assault she had suffered. A preliminary departmental enquiry revealed prima facie grounds to proceed and, thereafter, a criminal case was registered.

Later, despite assurances by the employer and everybody, the copy of the FIR with her name was shared on a Youtube channel. This aggravated her anxiety, as she got concerned about her son finding out about the incident.

“So long she undergoes such a phenomenon, the same is directly attributable only to the perpetrator and therefore would amount to a continuing offence. Such a phenomenon is not just the effect of the act, but is the injury itself,” the court remarked, rejecting the accused’s plea on the timeline aspect.

It said that discrepancies and hyper technicalities should not sway the court in cases of sexual harassment, where overall fairness of the enquiry should be held as supreme.

Timelines provided in the law are meant to expedite prompt action, and not to entitle a delinquent employee to question the proceedings, the court further held.

However, even in a case where sensitivity requires that the victim not be exposed before the perpetrator, the right to cross-examination is still a valuable facet to ensure fairness and impartiality in the enquiry and the principles of natural justice. Therefore, the court allowed his request to cross-examine the complainant as well as the witnesses.

But the court gave the ICC liberty to decide if the victim and witnesses should be exposed to the accused. For protecting them, it said, the committee can consider putting the screen to hide them, or the accused can provide a list of questions that can be administered by another employee, in his presence, to the complainant and witnesses.

(Edited by Mannat Chugh)