Article (August-2019)

Articles

Time to check the genuineness of SEXUAL HARASSMENT complaints

H.L. Kumar

Designation : -   Advocate, Supreme Court

Organization : -  New Delhi

01-Aug-2019

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Here is news, which has been published in many leading newspapers, that says that the Delhi High Court while hearing a matter fined the female petitioner Rs. 50,000 for raising a false plea of sexual harassment. The petitioner, an Assistant Director with ESI Corporation in Manesar, Gurgaon in July 2011 made a written complaint to the Director-General of ESI Corporation alleging sexual harassment by one S. H. Verma. In her complaint she had mentioned about two incidents:

‘Yesterday when I was seated with my colleagues on the 1st floor of the building, Sh. Verma came and commented indicating sexual advances. I cannot for the reasons of modesty bring on papers the filthy language he uses for me. Yesterday in the presence of my staff and other members he asked me to come alone to check the shortcomings of the male toilet when nobody is there, and I will follow you soon.’

In pursuance of her complaint, an Internal Complaints Committee (ICC) was constituted which examined the petitioner, the alleged perpetrator and eight other eyewitnesses. In its report, the ICC observed that the exact content of the alleged communication could not be established. Giving benefit of doubt to the alleged perpetrator, it recommended the relocation of both the petitioner and the alleged perpetrator from their postings. The counsel for the petitioner urged that the findings of the ICC were unjustified and erroneous.

The Court had earlier directed the employer, ESI Corporation to produce the original relevant records. Examining the same the Court found that though the petitioner had alleged in her letter that during the perpetration of the impugned acts she was in the presence of her colleagues, she could not recollect the names of anyone of them even after she was shown the relevant papers related to the staff members who were present on that day. None of the eight witnesses examined supported her version. The petitioner did not mention the exact comments made by the alleged perpetrator either in the complaint or before the committee without providing a reason or justification. Further, there were a number of instances which pointed at the fact that the petitioner did not have a clean service record. Considering all of these the High Court observed that there was no merit in the writ petition and dismissed the same. The Court also ordered the petitioner to deposit a sum of Rs. 50,000 with the Delhi Advocates Welfare Trust within four weeks.

This amply demonstrates the flagrant misuse of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, which was aimed more to provide safety and sense of security to the women employees at the workplace. There is no gainsaying that women have been sexually harassed and exploited by influential persons but it is also equally true that after the enactment of this harsh act many unscrupulous women have been misusing it either for availing the undue advantages or settling the scores with those who they consider being rivals or hostile to them.

In yet another the case of C.S. Usha v. Madras Refineries Ltd. represented by its Company Secretary, Chennai, (2001) II LLJ 148: (2001) 1 MLJ 802: 2001 LLR 669 (Mad. HC) a woman was a Senior Officer in Public Sector undertaking. She got promotion to the next higher rank after a gap of about three years’ service. She was facing sexual harassment by advances and propositions by her immediate boss. She suffered them silently. She did not even complain to anyone. Her immediate boss was near to the management. Her boss continued with his sexual advances towards her. She applied for study leave but she did not receive any information as to whether her demand for study leave was sanctioned or not.

Be that as it may, she proceeded on leave for her higher studies. She also met the higher authorities in this respect but except verbal assurance nothing concrete result was there. She was issued a charge- sheet for her unauthorized absence from duty for a long time. Then she made a written complaint in respect of her sexual harassment by her boss to the higher management and even got served a legal notice upon the management through her counsel. Management was bent upon to conduct disciplinary proceedings whereas the woman was stressing to decide firstly her complaint of sexual harassment. She filed two separate writ petitions seeking relief of stay of disciplinary enquiry till the final disposal of her complaint regarding sexual harassment and for grant of benefits of revision of salary with arrears of pay, promotion, the grant of study leave with pay, the constitution of independent complaint mechanism after framing proper rules. But they were dismissed by the learned Single Judge and Division Bench after having observed that the Complaint Committee was constituted as per norms settled by the Supreme Court in Vishaka v. State of Rajasthan, 1997 LLR 991 case and there is no legal bar in conducting both the enquiries simultaneously.

However, the High Court observed that a cursory perusal of the correspondence which took place in the various letters and communications made by the appellant (woman) with the company and also with the Petroleum Ministry regarding her request for study leave with pay and the refusal by the respondent clearly reveals that not even a whisper was made by the petitioner about the alleged sexual harassment alleged to have been done by her boss and significantly, her complaint of sexual harassment at workplace surfaces only in the lawyer’s notice issued in April 1998 for the first time, that too, stating that she started to acquire higher qualifications to keep herself away from the alleged advances of her boss.

The complainant was not an ordinary woman. Had there been any harassment much less sexual harassment, a woman of the stature of the petitioner would not have kept quiet for a period of about six years. To substantiate such observations after a period of say about 8/10 years, raised by the Court or even by the accused man is a very difficult task and the accused would go scot-free in the absence of any cogent and convincing evidence.

Therefore, it is not necessary but essential to check the sexual harassment at the very initial stage by providing proper education and effective safety guards to the working class of women and by keeping a vigilant eye by the employer by exercising checks at all levels from time to time considering the guidelines given by the Supreme Court of India in the landmark judgment of Vishaka v. State of Rajasthan. The only good thing is that the Courts have now been meticulously looking into the complaints and don’t believe them by putting the blinkers on the eyes. As a result of it, the bogus complaints women are taken note of as they normally boomerang on them.

The writer is author of Commentary on Sexual Harassment of Women at Workplace