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India’s Law on Prevention of Sexual Harassment at Workplace: Analysis of Recent Case Laws - Part 3

India’s law on the prevention of workplace sexual harassment continues to gain traction in spite of the Covid-19 lockdown and employees working remotely. Incidentally, the definition of ‘workplace’ under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 of India (“PoSH Act”) includes “a dwelling place or a house”. While that was primarily meant to cover domestic helpers, it could extend to employees working from home.

While the shift to a virtual workspace has reportedly lead to a decline in the total number of sexual harassment complaints in India1, sexual harassment continues to occur in more subtle ways such as inappropriate messages, calls/texts at odd hours, sexist remarks, taking screenshots without one’s knowledge during video calls etc.2 Considering the lockdown since March 2020, cases relating to PoSH Act have been heard on video conferencing and the judgments have been pronounced virtually, keeping in mind the urgency and gravity of the situation.

Following our previous legal alerts in 2019 and in 2020, we are delighted to share Part 3 of our analysis of some of the recent and pertinent case laws on PoSH Act-related aspects.

  1. WHAT IS “SEXUAL HARASSMENT”?

  1. SEXUAL HARASSMENT DOES NOT NECESSARILY HAVE TO BE MAN V. WOMAN

  1. CONSTITUTION & FUNCTIONING OF THE ICC

In this case, it was found that the ICC was improperly constituted as it comprised of three members who were part of the same department as the respondent was previously employed in and were in fact subordinate to him at that point in time. Since, it is the settled position under law that the ICC should be a body which is objective and neutral and not biased in any manner, the employer was ordered to re-constitute the ICC.

  1. POWERS OF THE ICC

  1. DISCIPLINARY ACTION TO BE BASED ON THE INQUIRY AND IN ACCORDANCE WITH EXISTING SERVICE RULES

  1. ROLE OF ICC VIS-À-VIS DISCIPLINARY COMMITTEE IN SEXUAL HARASSMENT

  1.  CAN AN EMPLOYER DEVIATE FROM RECOMMENDATIONS OF THE ICC?

CONCLUSION

Various courts continue to discuss and interpret the provisions of the PoSH Act. Such decisions need to be taken note of and carefully analysed by the employer and the ICC, in view of the sensitivities involved in relation to the topic of sexual harassment at the workplace.

FOOTNOTES

1 https://www.livemint.com/companies/news/sexual-harassment-cases-at-offices-decline-in-fy21-11630864037305.html

2 https://www.livemint.com/news/business-of-life/even-in-the-virtual-office-sexual-harassment-continues-11594561717967.html

3 Anil Rajagopal v. State of Kerala and others [I.L.R. 2018 (1) Kerala 719]

4 Prasad Pannian v. The Central University of Kerala and Ors. 2021LLR384 (Kerala HC)

5 Global Health Private Limited v. Local Complaints Committee, District Indore and Ors.2020 LLR 40 (MP HC)

6 Malabika Bhattacharjee v. Internal Complaints Committee, Vivekananda College and Ors. 2021(1) SCT 431 (Calcutta)

7 Punjab and Sind Bank and Ors. v. Durgesh Kuwar AIR2020SC3040

8 Ruchika Kedia v. Internal Complaints, Goa Institute of Management, Through Its President Prof. Annamika Sinha And Ors. 2020 SCC Online BOM 139

9 Rashi v. Union of India And Another (MANU/DE/2178/2020)

10 Bibha Pandey v. Punjab National Bank and Ors. 2021 LLR 359

11 Vijaykumaran C.P.V. v. Central University of Kerala and Ors. (2020)12 SCC 426

12 Ananta Prasad v. Gauhati High Court and Ors. 2020 LLR 980

13 Keshaba Ch. Panda vs. Sambalpur University and Ors 2020 (I) OLR 909

14 Institute of Hotel Management, Catering Technology and Applied Nutrition and Ors. vs. Suddhasil Dey and Ors. 2020 (4) SLR 437

Nishith Desai Associates 2022. All rights reserved.National Law Review, Volume XI, Number 342
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Archita Mohapatra Attorney Nishith Desai Assoc. India-centric Global Law Firm
Labour and Employment Practice Member

Archita is a member at Nishith Desai Associates’ Labour and Employment Practice. Nishith Desai Associates is a research based international law firm having offices in Mumbai, Silicon Valley, Bangalore, Singapore, New Delhi, Munich and New York. Archita is based out of the Mumbai office of Nishith Desai Associates.

Archita is specialized in labour and employment laws and has been advising clients on a wide range of employment law matters. She has been involved in various matters relating to workforce management and re-structuring, compensation and benefits, reductions in force,...

+91 8657435886
Preetha Soman Lawyer Nishith Desai Assoc. India-centric Global Law Firm
Preetha Soman Lawyer Nishith Desai Assoc. India-centric Global Law Firm

Preetha Soman is a Leader of the HR Laws (Labor & Employment) team at Nishith Desai Associates (NDA). From routine compliance matters to matters involving hiring, workforce management, retention and strategy, employee re-organizations and reductions in force etc., Preetha has worked on a wide range of complex and intricate labor law matters.

She also works very closely with industrial bodies and organizations including NASSCOM to conduct workshops, webinars and awareness programs on Indian labor and employment laws. She has also been...

+91-22-6159 5000
Vikram Shroff Attorney Nishith Desai Assoc. India-centric Global Law Firm
Leader of HR Law Team

Vikram is the leader of the HR Law (employment & labour) team at the research & strategy driven international law firm, Nishith Desai Associates with offices in Mumbai, Silicon Valley, Bangalore, Singapore, New Delhi, Munich and New York.He has been employed with the firm since over 22 years.

Vikram has been consistently ranked as India’s leading labour and employment lawyer by most of the leading international publications.  He advises leading technology, media and financial services sector companies in drafting and negotiating employment contracts; non- disclosure...

91 98670 31941
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