I was yet to come across the Respondent’s Rights beyond a cursory mention of Involved Parties Rights & Duties in all my training and learning experience. This mention was not sufficient for me to prepare the Respondent for the Inquiry and exercise his rights within the scope of the Sexual Harassment of Women at Work (Prevention, Prohibition and Redressal) Act and Rules 2013 (“PoSH Law“).
PoSH trainers are mostly preoccupied with the Complainant’s Rights. They want to ensure the Complainant, who may have undergone Sexual Harassment, mental stress, trauma, is guided sensitively and appropriately. They want to treat her with the utmost care, without further violating her boundaries, affronting her respect, and treading on her rights.
Respondent’s Rights Need to be Highlighted
PoSH ICC Workshops (IC) usually do not focus on IC’s sensitization on what the Respondent is likely to be going through. His mental stress and stigmatization aspects may get overlooked. These workshops may not focus on how IC can ensure the Respondent is made aware of his Rights.
The Respondent needs expert guidance on how to file his response most effectively for his defense.
Hence, attending a live webinar conducted by Antony Alex, CEO, and founder of Rainmaker, with Trideep Pais, an advocate who has been litigating for the past twenty years in criminal and civil law, was very informative & insightful. Trideep has represented both Complainants and Respondents in cases of Sexual Harassment.
The webinar did justice to both parties in terms of knowledge sharing, but especially to Respondents, who might find themselves lacking the know-how of filing an effective Response to a Sexual Harassment complaint made against them.
Here, I have shared some of the aspects of complaints against (male) Respondents and their responses.
Can The Complainant Take Advantage of The Gender-Differences?
- If a (male) senior shouts at a (female) subordinate in front of others, is this Sexual Harassment? Can she file a complaint with IC?
There is a tendency for people to think that the Complainant can take advantage of the gender difference between herself and her senior and lodge a complaint with the IC alleging Sexual Harassment. But if the shouting or the alleged behavior has nothing to do with Section 2 (n), that means it is not sexual; then, it is not Sexual Harassment. And filing a complaint with IC will only complicate matters unnecessarily.
The only caveat is, if there were a prior incident where sexual favors were asked by the senior and denied by the subordinate, then the shouting would amount to retaliation and a hostile work environment for her. The PoSH Law treats this retaliation also as Sexual Harassment.
If there is no prior or present sexual connotation, then however rude or obnoxious the behavior is, you cannot term it as Sexual Harassment.
Case-Judgment To Support This Claim
There is a recent Case-Judgment to support this, Union of India & Ors. vs. Rema Srinivas Iyengar, by Madras High Court, dated 17th February 2020, on single allegation of intemperate language against a female employee does not constitute an offence under the PoSH Act. The details can be found under the heading Webinars on the Rainmaker site, in a webinar titled Key Judicial Decisions on the PoSH Act- Part 2.
- Should a Respondent consult a lawyer for guidance?
Yes, he should if he can afford it. Trideep is not saying he can hire a lawyer to represent him before the IC, as the PoSH Law prohibits that. But he can and should consult a lawyer to precisely guide him in filing an adequate response, and in various aspects of the PoSH Law, which can be beneficial to him.
Trideep also believes it is vital that there is one lawyer in the IC.
Does The Lawyer Need To Be An Expert In PoSH Law?
But there could be a lawyer who does not know the day-to-day functioning of the PoSH Law (including the Case-Judgements, experience, and expertise in handling inquiries); hence it is essential that the External Member be an expert in PoSH Law, and women’s issues, whether a lawyer or not.
- Why should Respondent take this complaint of Sexual Harassment seriously if he hasn’t committed any offense? Should he merely baldly deny everything and let the IC find the truth?
No. Even if the Respondent believes that the allegations are utterly false, the fact that there is a complaint of Sexual Harassment against him, and his belief in a safe workplace for women, should make him take the complaint seriously. He should make every effort to prepare a suitable response, by presenting his side of the events, list of witnesses, documents etc. He must also cooperate with the process of Inquiry to the best of his ability.
Are PoSH Committee Members Considered Professionals For Inquiry Purposes?
One should keep in mind that the IC is conducting this inquiry over and above their day job. An inquiry may not be something they have done many times before or even once. They are not professionals and may/may not be well-trained.
So, the Respondent must understand the need to defend his case. He must make every effort to do so within the Statute and its provisions. He will be helping himself immensely by aiding the Committee to probe into the allegations.
A Single Unwelcome Act of Sexual Nature At The Workplace Can Invoke The PoSH Law
It may also be that he is not well aware of the PoSH Law and “what Sexual Harassment is definitionally.” Therefore, while taking the complaint seriously, he also gets to learn how he may have inadvertently broken the PoSH Law by unknowingly invading the personal boundaries of the Complainant. He may have made her feel sexually harassed by behaving in an unwelcome manner.
For instance, by asking inappropriate questions about her personal life or passing some comments about her body and clothes with a sexual connotation, he may have stepped on her boundary.
The bottom line is that it doesn’t matter whether the Respondent thinks the complaint is entirely uncalled for; he has to cooperate and help the IC bring out the truth. Therefore, he should do everything in his capacity to “submit a detailed and comprehensive reply.”
Whether a complaint is serious or frivolous and the merits of the case are for the IC to decide. But the Respondent should not take it lightly.
- Does a Respondent have a Right to ask the Internal Committee for documents that may help him in filing his response?
Yes, absolutely. As per Section 11 (3) (a), (b), the IC has powers to require the production and discovery of documents. The Respondent is well within his rights to “make an application to the IC, urging them to exercise this power.”
Respondent Must Check If He Needs More Documents Before Furnishing His Reply
On receiving the IC complaint, he should not prepare his response by writing out the reply immediately but assessing what he needs to write an adequate response. He may need some documents which may be in possession of Complainant, HR, mobile service provider, hotel, off-site, etc. These may be CDR (Call detail records), CCTV footage, attendance records, e-communication, or anything else that can help his case.
Suppose he can convey a valid reason for the requisitioning of those documents. The IC sees no irrelevance/mala fide intent in his request. In that case, the IC should make every effort to provide those documents.
Likewise, these documents may even help the Committee to get to the bottom of the truth.
The parties are better-positioned than the PoSH Committee Members to know which documents may help strengthen their case; hence, both parties should exercise this Right. This application to requisition documents is also called Discovery Application.
Trideep, during the conversation, repeatedly emphasized that the “IC should be inquisitorial in nature, and not adversarial.”
Respondent May Need A Day Or Two More To Furnish His Reply
For instance, the Respondent is asking for more time to file his reply. (As per the law, he has to file his response within ten working days). The Respondent can write to the Internal Committee requesting more time. He is waiting for the requisitioned documents and seeking their leave to give him 1-2 extra days to submit his reply.
In turn, the Committee can write to the Respondent, saying he should file the rest of the response, which does not hinge on the documents he is waiting for. After receiving those documents, he can submit an additional note. Of course, the delay should not be indefinite. Still, if the reasons for the delay are genuine and valid, the IC can grant a few extra days by way of the Condonation of Delay.
The Condonation of Delay also applies to the Complainant, who has to submit her complaint within three months of the date of the incident/last incident. (The IC can give an additional three months if they are satisfied that the reason for not making the complaint earlier was valid.)
The IC must view this Limitation Period of 3 months and additional three months more rationally than hyper-technically. The IC should condone a delay of 1-2 days with a valid reason (to be recorded in writing) It is to be noted that IC is not compelled by PoSH Law to condone the delay. It is the discretion of the IC. They may do it in the exercise of principles of natural justice, to give each party a fair chance.
Inquiry Extending Beyond 90-Days
But Trideep does not think that an inquiry beyond the stipulated 90-day period will be valid (upheld in court). The 90-day period is “sufficient to complete the inquiry,” according to Trideep, failing which the inquiry will be void.
Since there is no Case-Judgment on this issue, many organizations working in this domain might professionally differ. I have come across inquiries which have stretched beyond the time limit stipulated by the PoSH Law, due to exigencies such as holidays.
I would be happy to read the views of our readers on this bilateral issue.
Author: Sumali Nagarajan
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