Del HC | Can absence of eyewitness in a sexual harassment incident detract complainant’s credibility before Internal Complaints Committee constituted at a workplace? HC explains

Delhi High Court: The Division Bench of Rajiv Sahai Endlaw and Asha Menon, JJ., observed that:

It is impossible not to notice all 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!

Appellant had filed the instant appeal on being aggrieved with the Single Judge’s decision.

Bench noted that the inquiry into the complaint of sexual harassment filed by the appellant against the respondent 3/O.P. Verma was conducted before the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Petitioner was working as an Assistant Director with the ESI Hospital, Manesar, Gurgaon. Respondent 3 was posted as Deputy Director in the same hospital.

Appellant had complained that he was repeatedly subjecting her to sexual harassment by using inappropriate language with sexual overtones.

Further, the appellant submitted that she was distributing housekeeping material among the nursing staff at the ESI Hospital when respondent 3 told her to accompany him to male toilet using words that were indicative of sexual advances. Due to the said incident, the appellant felt deeply humiliated.

 Respondent 3 had commented on appellant’s dressing as well where he stated that if another button of her shirt were to open what would be the result that would follow.

On yet another occasion, when the appellant commented to other Staff that Saturdays should be a half-day as there was less work and during the rest of the time they were only playing hide and seek, the respondent 3/O.P.Verma remarked that neither had he caught the appellant nor had the appellant caught him.

The above incidents caused great anguish to the appellant.

In light of the above incident, a complaints committee was duly constituted. The Committee granted the benefit of doubt to respondent 3 and further recommended that both the officers, be relocated with immediate effect.

According to the appellant, this decision was not communicated to her and it was only on 3-07-2013 in response to an RTI query that she learnt of the decision. She filed an appeal but was also not again communicated the result of that appeal.

In the meanwhile, respondent 3/O.P. Verma retired. She, therefore, filed the writ petition challenging the recommendation of 20-01-2012.

Appellant had questioned the transfer by means of the writ petition filed by her and had also sought an independent internal departmental inquiry against the respondent 3/O.P.Verma as well as directions for criminal prosecution against him instead of the transfer. The question that presents itself is whether such relief could be granted or not.

Bench stated that since the respondent retired 5 years back it does not considers it expedient to grant such relief to the appellant of directing an independent departmental inquiry against him.

Court observed that with regard to the criminal prosecution, nothing prevented the appellant from initiating any such action against the respondent 3/O.P.Verma since the date of the incident or even since the date of the report of the Complaints Committee. Appellant did not seek such a relief from the Internal Complaints Committee even after the Act came into force in 2013.

Before parting with the instant order, the Court found it necessary to underline that:

Sexual Harassment is a serious issue that needs to be addressed at all work places urgently and sensitively.

Women are entitled to a congenial and dignified environment to live their life fully and attain their full potentiality.

With regard to Gender Conditioning, Court noted that

Gender conditioning where the man develops a superiority complex, while the woman doubts her own capacity, starts very early in life. It need not be in the form of a tutorial, but certainly as subtle data to the minds of young children, about their privileges or lack of it.

Every institution and organization must declare zero tolerance for Gender insensitivity.

In the instant case, the appellant did not know about the appropriate authority before whom to file her initial complaint.

When asked by it as to why she had lodged the complaint directly to the headquarters, she answered that she did not know the address of the ‘Woman Cell’ at the ESI Hospital and had made an enquiry from Manju Swaminathan and submitted her complaint to the Complaints Committee.

Bench also added to its observation that it cannot be overlooked that the Internal Complaints Committee is intended as a platform to provide an environment of confidence to the complainant.

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.

Gender Sensitization

Gender sensitivity requires an understanding of what a woman feels when she is sexually harassed.

Though stereotyping is itself unwarranted, it has been noticed that just as in other sexual offences, a woman goes through a lot of soul-searching (again due to gender-conditioning), she tries to adopt measures of self-protection, by avoiding the perpetrator, may be even by taking leave!

Importance of Internal Complaints Committee

Internal Complaints Committee has to be set up in every workplace and every woman employee informed as to the person she can contact in the Internal Complaints Committee when faced with any unsavoury or unacceptable conduct by a male colleague.

The high standard of proof required in criminal trials is not called for during an inquiry by the Internal Complaints Committee under the Act.

There can be no insistence on production of witnesses by the complainant to corroborate her statement.

It is not enough to merely constitute Internal Complaints Committees, but it is also important that the purpose for having such a Committee and in fact for making such a law must always remain uppermost in the minds of all at the workplace.

Hence, Bench reiterated that all employers are required to sensitize all employers who work in the organization to deal with a woman, whether a colleague or a visitor or a beneficiary of services provided to the public, always remaining acutely aware of her dignity.

When a person speaks, the words have an impact and the speaker must be conscious of such impact when speaking to a woman whether from the public or a colleague.

Appeal in view of the above discussion was allowed.[X v. Union of India,  2020 SCC OnLine Del 1618, decided on 17-12-2020]


Advocates who appeared before the Court:

Advocate for the Appellant: Kamna Vohra

Advocates for the Respondents: Anil Dabas, Advocate for R-1. Yakesh Anand, Advocate for R-2,4 &5 ESIC

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