Recently, the Punjab & Haryana High Court passed an order in Gurshan Kaur vs. Union of India & Ors. (Order dated 14.7.2020). The High Court imposed a fine of Rs 1 Lakh on the petitioner for filing a “completely frivolous” petition in an alleged complaint of sexual harassment under the PoSH Act 2013.

The facts are briefly as follows: the petitioner, a nurse, working at ESIC Model Hospital, Chandigarh, had moved the High Court challenging the Inquiry Order passed by the Internal Committee (IC or ICC) of the hospital.  The petitioner contended that the IC had not followed the principles of natural justice by allowing IC members to also be defense witnesses.  The court dismissed the petition and imposed a fine of Rs. 1 lakh on the petitioner. Is the judiciary diluting the principles of natural justice and creating a fear psychosis amongst aggrieved women?

What was the contention of the Petitioner?

The contention of the petitioner, as mentioned in the Court Order, was that three of the five PoSH Committee Members had appeared as defense witnesses. Hence, the petitioner termed the Inquiry Report/Order submitted by the PoSH Committee as biased and illegal. The petitioner also alleged that the PoSH Committee Members had destroyed the CCTV footage of the alleged sexual harassment incident.

Why did the High Court view the Petition harshly?

The Court observed that (three) PoSH Committee Members that record a statement on behalf of the Respondent are not indicative of being biased. The Court stated such contention on the part of the Complainant was utterly baseless. It held that the IC members’ conduct did not favour the Respondent since they intended to bring forward the truth.

The High Court Order has further noted that the PoSH Committee Members had provided a detailed Inquiry Order of 21 pages.

The Single Bench of the High Court came down heavily on the petitioner. It held that on the contrary, the Inquiry Order had been pronounced by a PoSH Committee that consisted of highly educated persons. There were three doctors, two belonging to the medical profession, and the third was a legal expert.

Why do we view the High Court judgment as oppressive?

The Court found the petition “completely frivolous to blackmail the system and superiors under whom the petitioner works.” The Court further stated that the petitioner is “arrogant and wants to create fear-psychosis in the mind of the superiors.”

In our opinion, the current judgment is extremely harsh and egregious. This fine is the most substantial amount a Court has ever penalized a Complainant. This case can significantly dilute the functioning of the PoSH Act 2013 and to the contrary, end up creating a fear psychosis in the minds of women who have been sexually harassed. In the future, a Complainant may be afraid to appeal because a Court may dismiss it with a hefty fine.

The Courts are required to pass orders that are consistent with the letter and spirit of the PoSH Act 2013, which mandates that the principles of natural justice have to be followed.  There is a clear violation of this principle, in allowing IC or POSH Committee Members to be also defense witnesses.  Can the “principles of natural justice” be given a go by, if the concerned people are “respectable doctors”? Or for that matter from any other respectable profession? Decades of hard work is being undone, if the judiciary passes such orders and they aren’t set aside.  This judgment is likely to instill fear in the aggrieved women’s consciousness and defeat the purpose of the PoSH Law itself.  Is the judiciary’s objective to ensure that no complaints of sexual harassment reach them on appeal?  If so, that objective is surely being met with such regressive orders.

The readers may recall our recently held Webinar on Judicial Judgements Episode 2. In this webinar, Rainmaker had discussed various case judgments in which the Courts had dismissed Complainant’s petition with a fine.

This is a dangerous trend that’s setting in amongst the higher judiciary and needs to be nipped in the bud.  The Supreme Court needs to urgently intervene and set clear guidelines for instances where High Courts can impose costs on petitioners

What can Rainmaker Training do?

At Rainmaker Training, we have PoSH External Members who are not only accomplished PoSH Lawyers, but are also adept at knowing how to speak to the Complainant and Respondent sensitively. We take pains to address the needs, both spoken and unspoken, of the parties involved. This is done along with the PoSH Committee Members, so that everyone is aware and respectful of the parties’ state of mind. Taking steps to explain the case’s subtleties to the parties involved is extremely important in preventing future litigation in Courts and importantly, to ensure that justice is done.

Reach out to us for your PoSH Committee Members Training Needs, and experienced, highly competent PoSH Lawyers who are PoSH External Members in several organizations.

I wish to thank Rakhi Mohanty, AVP, Legal & Research, Rainmaker for her helpful contributions to this blog.

Author: Sumali Nagarajan

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