Written by: Suruchi Kumar
Editor’s Note: In this article, the author takes you through the facts of the recent Anita Suresh case followed by the key takeaways from the Delhi HC Division Bench.
Bench: High Court of Delhi
Decision dated: December 17, 2020
The petitioner was working, at the time of the complaint as an Assistant Director (Fin.) with the ESI Hospital at Manesar, Gurgaon, and respondent No. 3/ O.P. Verma at that time was posted as Deputy Director in the same hospital.
The appellant had complained that she was repeatedly subjected to sexual harassment by the respondent where he was using inappropriate language with sexual overtones. The complaint was filed on 08.07.2011 regarding certain incidents of 07.07.2011.
However, the complainant could not provide a clear statement on the language used by the respondent and her complaint could not be corroborated by the witnesses. Nevertheless, the IC gave the complainant benefit of the doubt and in order to maintain harmony at the organisation transferred both the respondent and the complainant to another branch.
Aggrieved with such a transfer order, the complainant filed an appeal and thereafter a petition at the High Court of Delhi. In a turn of events, the Single Judge of Delhi High Court on the basis of lack of sufficient corroboration and basis the previous service records of the complainant held that the complaint filed by X was false and frivolous.
It held that “it is not believable that the petitioner would not remember the names of any colleague/staff member. The Committee examined all the persons who were on duty on that day, but no persons supported the allegations of the petitioner. The petitioner has not mentioned the alleged comments of respondent No. 3 in the complaint on the ground of modesty. The petitioner did not even disclose the alleged comments before the Committee. No reason or justification was been given by the petitioner for not disclosing the same before the Committee. The entire complaint of the petitioner appears to be false and has been filed with some ulterior motive.”
The Court dismissed her writ petition and also imposed exemplary costs of INR 50,000 upon her while granting liberty to the ESI to initiate appropriate action against her for filing a false complaint against the respondent No. 3/O.P. Verma.
Aggrieved with this order, the Petitioner filed an appeal before the Division Bench of High Court.
Typically, the evidence and records of inquiry proceedings are not checked by the courts at this stage. However, being a matter of dignity of a woman complainant, the Division Bench went through the records and found the Complaints Committee report conclusive enough that the incident of harassment had taken place but the words of the respondent could not be sufficiently corroborated by the witnesses.
In this case, the Complaints Committee was right to give the benefit of the doubt to the complainant but wrong to recommend her transfer. It was wrong of the Single Judge to hold the complaint to be false when the respondent himself conceded that the words were spoken but the intention was misunderstood. It was also wrong of the Single Judge to take into account past service records of the complainant and make it a case of a false complaint.
Therefore, the Division Bench allowed the appeal and set aside the order of the Single Bench levying costs of INR 50,000 and directing ESI to take action against the complainant.
• While setting aside the decision of Single Judge, the Division Bench reiterated basic principles of the PoSH Act and laid emphasis on certain aspects to be kept in mind while dealing with complaints of sexual harassment:
• Sexual harassment is a serious issue that needs to be addressed at all workplaces urgently and sensitively. Women are entitled to a congenial and dignified working environment to live their lives fully and attain their full potentiality. Every institution and organization must declare zero tolerance for gender insensitivity. The statute to protect women from sexual harassment at the workplace – the law must be complied with in letter and spirit;
• Gender conditioning where the man develops a superiority complex, while the woman doubts her own capacity, starts very early in life. It is impossible not to notice around us, how easily the “common woman” is put down by the “common man”. Less said the better of what happens to the Third Gender.
• Most instances of sexual harassment happen behind closed doors. The role of the IC here is not to doubt the veracity of the complaint or view the complainant with suspicion. It is to believe her and not compel her to name witnesses to seek corroboration. The absence of eyewitnesses to the incident cannot detract from the credibility of the complainant as her statement is to be considered independently to determine whether it has a ring of truth or not.
• An Internal Committee has so many members, including an outsider, to enable a joint application of minds to evaluate the statement made by a complainant and assess its credibility.
• A high standard of proof required in criminal trials is not called for during an inquiry by the Internal Complaints Committee under the Act;
• It is also a safeguard for men, as false complaints are very much possible (though not in this case) and for which the Act has also made clear provisions, including to punish such a complainant for false and malicious complaints and false evidence;
• Standard of proof in an inquiry by the Internal Complaints Committee is as for a domestic inquiry. Under the Act, the Report of the Internal Complaints Committee can be taken by the employer for disciplinary action against the delinquent official. The mere inability of a woman to name such witnesses cannot suffice to falsify her complaint;
• Upon conclusion of the inquiry by the Internal Complaints Committee, there must be some sensitivity shown by it while recommending action, keeping in mind the dignity of the complainant. The transfer of the complainant should be only if she seeks it or when she has been found to have filed a false complaint. The ripple effect of such action could be that other suffering women, would hesitate to file complaints, fearing a transfer.
• It’s imperative to have a strong redressal system in the organization as that would also protect the male workforce and officials from ingenuine complaints and also give them the opportunity to explain their conduct and action before a more restricted and confidential forum; and
• To this end, all activities as reproduced hereinabove and prescribed under the Act and Rules must be strictly performed by all organizations. Greater understanding leads to greater mutual regard and respect and greater harmony leads to greater efficiency and productivity, ensuring the benefit of all.
About the author: Suruchi Kumar is the Head of Legal Services at Ungender, Advocate at the Supreme Court and a Labour Laws expert.