Law Web: Whether Mere Discrimination On Ground Of 'Sex' Without Sexual Undertones will amount to Sexual Harassment Under POSH Act?

Apparently, the 2013 Act does not contemplate a

situation of discrimination on the basis of sex whereas it

specifically deals with sexual harassment in the workplace.

The very concept of sexual harassment in a workplace against a woman should start from an express or implied sexual advance, sexual undertone or unwelcome behaviour which has a sexual tone behind it without which provisions of Act 2013 will not apply. In Anil Rajagopal

(supra) also, this Court had while interpreting 2013 Act had

arrived at the very same finding.

14. In the result, we do not think that Anil Rajagopal

(supra) requires any reconsideration. We would only clarify that

any form of sexual approach or behaviour that is unwelcome will

come under the definition of 'sexual harassment' and it is not

confined to any of the sub clauses mentioned in Section 2(n),

which of course will depend upon the materials placed on record

and on a case to case basis. But it is made clear that in order to

take action under the 2013 Act, the acts complained of should

come within the purview of S.2(n) and Section 3 of the Act or any

other form of sexual treatment or sexual behaviour on the part of the respondent.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

MR.JUSTICE A.M.SHAFFIQUE

MR. JUSTICE GOPINATH P.

Dated: 02ND DAY OF DECEMBER 2020

WP(C).No.9219 OF 2020(B)

DR.PRASAD PANNIAN Vs THE CENTRAL UNIVERSITY OF KERALA

Author: Shaffique, J.

These cases had been referred to us based on a reference

order dated 15/9/2020. The substantial issue raised in the writ

petitions was whether a complaint given by the 8th respondent in

WP(C) No. 9219/2020 can be the basis of an enquiry under the

provisions of Sexual Harassment of Women at Workplace

(Prevention, Prohibition and Redressal) Act, 2013 (hereinafter

referred to as 'the 2013 Act').

2. The writ petitioner contended that the allegations in

the complaint given by the 8th respondent did not disclose any

form of sexual harassment coming within the purview of the 2013

Act. Reference was also placed to the judgment of the learned

Single Judge of this Court in Anil Rajagopal v. State of Kerala

and Others [2017 (5) KHC 217], wherein the learned Single

Judge after referring to the definition of 'sexual harassment'

under Section 2(n) of the 2013 Act and S.3(2) held at paragraph 9

as under:

“9. As already noticed, there is no sexual harassment

complained of and a solitary allegation of any or all of the

acts enumerated under S.3(2), cannot constitute an offence

under the Act of 2013. Any such act should be connected

with and in relation to any act or behaviour of sexual

harassment. This Court also does not find any allegation of a

promise, threat or an offensive or hostile work environment

or a humiliating treatment against the 6th respondent, from

the complaint; which is in connection with an act or

behaviour of sexual harassment. There is no allegation that

the purported harassment was intended at sexual

exploitation of the complainant; which can only be if there is

any allegation as such of a sexual offence."

Learned Single Judge while considering the above matter

however did not agree with the above proposition. It was held at

paragraphs 6, 7 and 8 of the reference order as under:-

“6. I am of the view that the definition given in Section 2

starts with "unless the context otherwise requires".

Clause (n) provides that sexual harassment will include

the acts and behaviour mentioned therein. Therefore, the

act or behaviour provided therein is not exhaustive; thus it

is an inclusive definition. Section 3 adds to some more

circumstances which can be termed as sexual harassment.

Both those provisions require to be construed having

regard to the legislative intent behind the Act 2013. It is

relevant to note that the Apex Court in the judgment in

Bharat Coking Coal Ltd. v. Annapurna Construction: (2008)

6 SCC 732, while construing the definition of the term

"court" in the Arbitration and Conciliation Act, 1996, which

was also an inclusive definition as in the 2013 Act,

reiterating the judgments in State of Maharashtra v Indian

Medical Assn:(2002) 1 SCC 589 and Pandey & Co. Builders

(P) Ltd. v. State of Bihar :(2007) 1 SCC 467, held that in

given cases where the definition clause is prefaced by the

words like 'unless the context otherwise requires' it can be

opined that the legislature intended a different meaning.

The aforesaid proposition was approved by a larger Bench

of the Apex Court in State of Jharkhand v. Hindustan

Construction Co. Ld.: (2018) 2 SCC 602.

7.It is also relevant to note the judgment in Tata Power Co.

Ltd. v. Reliance Energy Ltd.: (2009) 16 SCC 659 where the

Apex Court construed the definition clause in Section 2 of

the Electricity Act, 2003, which prefixed the words "unless

the context otherwise requires". It was held that the

meaning should be assigned "subject to the context". In

para.97 of the judgment it was held as follows:

"97. However when the question arises as to the

meaning of a certain provision in a statute, it is not

only legitimate but proper to read that provision in

its context. The legal principle is that all statutory

definitions have to be read subject to the

qualification variously expressed in the definition

clause which created them and it may be that even

where the definition is exhaustive inasmuch as the

word defined is said to mean a certain thing, it is

possible for the word to have some what different

meaning in different sections of the Act depending

upon the subject or context. That is why all

definitions in statutes generally begin with the

qualifying words "unless there is anything

repugnant to the subject or context". (See :

Whirlpool Corpn. v. Registrar of Trade Marks: (1998)

8 SCC 1, Garhwal Mandal Vikas Nigam Ltd. v.

Krishna Travel Agency: (2008) 6 SCC 741 and

National Insurance Co. Ltd. v Deepa v. devi (2008) 1

SCC 414) xx"

The intent of the Act 2013, as seen from its statement of

object and reasons, is to ensure an equitous, safe, secure

and enabling environment for women to work with dignity,

free from all sorts of sexual harassment and thereby to

encourage women's participation in work, in recognition of

their fundamental right under Article 19(1)(g) of the

Constitution of India. It would also show that the same is

enacted in discharge of its obligation and commitment

under Article 11 of the Convention of Elimination of All

forms of Discrimination (CEDAW) which mandates the

parties to it to take all measures to eliminate all forms of

discrimination against women and also in the light of the

directions of the Apex Court in Visakha v. State of

Rajasthan & others: (1997) 7 SCC 323. Any interference

with the work of a woman employee or any act or

behaviour which creates an intimidating or offensive work

environment or even a humiliating treatment which is

likely to affect her health or safety also amounts to

discrimination against women which is liable to be

eliminated and should constitute implicit sexual

harassment. It is equally applicable to the women

students/teachers in higher educations, which are

governed by the UGC Regulations, 2015.

8. Therefore, I am of the view that the term 'sexual

harassment' is to be construed in the light of the

provisions contained in Section 2(n) read with Section 3 of

Act 2013 as well as the provisions contained in Regulation

2(k) of the UGC Regulations, 2015 having regard to the

circumstances arising in each case and a strict

construction of an inclusive definition even when the

circumstances mentioned in sub clause (i) to (v) of Section

3(2)/subclause (1) to (e) of Regulations 2(k)(ii) are

available would defeat the very purpose of the Act.

Therefore, I am of the view that the judgment in Anil

Rajagopal's case (supra) to the extent it construed the

provisions contained in Sections 2(n) and 3(2) of the Act,

2013 requires reconsideration."

3. We heard the learned senior counsel Sri.S.Sreekumar

appearing on behalf of the writ petitioner duly assisted by

Smt.Surya Binoy. Senior counsel argued that the provisions of the

2013 Act cannot be given a wide interpretation as envisaged by

the learned Single Judge in the reference order. It is pointed out

that harassment can be meted out against an individual in

different forms and only in instances where the harassment has

an element of sexual advance in some form, it becomes a sexual

harassment. A mere difference in sex between two individuals

cannot give rise to a sexual harassment even though there might

be harassment. To that extent, the learned Single Judge was not

justified in taking a view different from what is held in Anil

Rajagopal's case (supra). That apart, it is argued that the

provisions of the 2013 Act have to be given a strict interpretation

since any action pursuant to a complaint of sexual harassment

will affect the reputation and integrity of the opposite sex and

such acts may lead to penal consequence as well.

4. We heard Sri.Sajith Kumar, learned standing counsel

appearing on behalf of the University. Learned counsel supported

the view taken by the learned Single Judge in the reference order.

He also placed reliance on the judgment of the Apex Court in

Nisha Priya Bhatia v. Union of India and Others [2020 (3)

SCT 455 (SC)] wherein the Apex Court considered the question

relating to sexual harassment in workplace and held at paragraph

102 as under:-

“102. The scheme of the 2013 Act, Vishaka Guidelines and

Convention on Elimination of All Forms of Discrimination

Against Women (CEDAW) predicates that a non-hostile

working environment is the basic limb of a dignified

employment. The approach of law as regards the cases of

sexual harassment at workplace is not confined to cases of

actual commission of acts of harassment, but also covers

situations wherein the woman employee is subjected to

prejudice, hostility, discriminatory attitude and humiliation in

day to day functioning at the workplace. Taking any other

view would defeat the purpose of the law. A priori, when

inaction or procrastination (intentionally or otherwise) is

meted out in response to the attempt of setting the legal

machinery in motion, what is put to peril is not just the

individual cries for the assistance of law but also the

foundational tenets of a society governed by the Rule of law,

thereby threatening the larger public interests. The denial of

timely inquiry and by a competent forum, inevitably results

in denial of justice and violation of fundamental right. The

factual matrix of the present case is replete with lack of

sensitivity on the part of Secretary (R) qua the complaint of

sexual harassment. To wit, time taken to process the stated

complaint and improper constitution of the first Complaints

Committee (intended or unintended) in violation of the

Vishaka Guidelines, constitute an appalling conglomeration

of undignified treatment and violation of the fundamental

rights of the Petitioner, more particularly Articles 14 and 21

of the Constitution.”

5. We heard the learned counsel Smt.Rekha Vasudevan

appearing on behalf of the 8th respondent. Learned counsel

submits that sexual harassment can take different forms. First of

all, definition of sexual harassment in the 2013 Act itself is not

exhaustive, whereas it is inclusive in nature. Therefore, any form

of sexual intimidation or discrimination or behaviour which tends

to attract harassment only on account of difference in sex can

also be characterized as sexual harassment. She fully supports

the view taken by the learned Single Judge in the reference order.

She also placed before us judgment of a learned Single Judge of

the Delhi High Court in Dr.Punita K.Sodhi v. Union of India

and Others [WP(C) No. 367/2009 & CMs 828, 11426/2009]. In

that judgment, the learned Single Judge of the Delhi High Court

after a detailed analysis of the legal principles in the matter

relating to sexual harassment held at paragraphs 79 and 80 as

under:-

“79. The above decisions help in appreciating that a complaint

of sexual harassment and sex based discrimination requires

the body entrusted with the investigation of such complaint to

undertake its task with the correct approach and sensitivity. If

the entire complaint of the Petitioner is examined in the light

of the above discussion, it is clear that the inquiry cannot be

limited to the complaint of the Petitioner that Dr. Malik

attempted to touch her at wrong places, while in the operation

theatre in 2001. Incidents of sexual harassment ought not to

be viewed in isolation. The other parts of the complaint are as

relevant in determining whether there was any persistent

conduct of the perpetrator which could be termed as sex

based discrimination or harassment over a prolonged period.

The humiliation faced by a victim of sexual harassment could

remain with the victim. It is revisited and compounded when

the victim and perpetrator have to continue to work in the

same establishment. The imbalance in the power equation

between the perpetrator and the victim could exacerbate the

problem. The impact of such incidents on the continuing

working relationship of the perpetrator and the victim will also

have to be considered in examining whether the complaint

made of sexual harassment, even if belated, is justified. In a

complaint of sexual harassment and sex based harassment or

discrimination, which persists over a length of time, the

defence of limitation or laches may not find relevance.

80. The Committee also appears to have overlooked the

numerous other instances cited by the Petitioner in her

complaint which partake of sex based harassment and

discrimination. While sexual harassment would be a specie of

sex based discrimination, the latter could encompass a whole

range of commissions and omissions, not restricted to acts

that partake of express unacceptable sexual acts or

innuendoes. CEDAW too recognises that harassment can be

'sex based' and take various forms. The use of abusive and

abrasive language and a certain imputation of the competence

of a person only because such person is of a certain gender

are matters that would be covered under the expression 'sex

based' discrimination. For instance, the specific case of the

Petitioner is that the language used by Dr. Malik in the memos

and letters issued by him, questioning the integrity and

competence of the Petitioner is plainly abusive. This has not

been considered at all by the Committee. To borrow the

articulation of the Supreme Court of Canada in Janzen,

discrimination on the basis of sex may be defined as practices

or attitudes which have the effect of limiting the conditions of

employment of, or the employment opportunities available to,

employees on the basis of a characteristic related to gender. It

is important for committees dealing with complaints of sexual

harassment to understand the above dimensions of sex based

discrimination at the work place and not narrowly focus only

on certain acts that may have been the trigger for a series of

acts constituting sex based harassment or discrimination. Also,

as pointed out in Ellison v. Brady, the Committee was required

to focus on the perspective of the victim. The injunction to

Courts that they "should consider the victim's perspective and

not stereotyped notions of acceptable behavior"

equally applies to Committees that enquire into allegations of

sexual harassment and sex based discrimination."

6. Now let us consider the provisions of the 2013 Act. The

Preamble to the Act reads as under:-

“An Act to provide protection against sexual harassment of

women at workplace and for the prevention and redressal of

complaints of sexual harassment and for matters connected

therewith or incidental thereto”.

7. There is no dispute to the fact that sexual harassment

of women at workplace results in violation of fundamental rights

of equality, enshrined under Articles 14 and 15 of the

Constitution of India and her right to live with dignity under

Article 21 of the Constitution. It is to ensure a safe environment

free from sexual harassment for women that the Act had been

formulated. Section 2(n) defines sexual harassment as under:-

“2. Definitions. xxxx

(n) “sexual harassment” includes any one or more of the

following unwelcome acts or behavior (whether directly or

by implication) namely:—

(i) physical contact and advances; or

(ii) a demand or request for sexual favours; or

(iii) making sexually coloured remarks; or

(iv) showing pornography; or

(v) any other unwelcome physical, verbal or non-verbal

conduct of sexual nature.”

Apparently it is an inclusive definition and only a few

unwelcoming acts or behaviour had been mentioned at subclauses

(i) to (v). There might be other instances as well. Any

such behaviour which is unwelcome could be either direct or

indirect. Sub-clauses (i) to (v) are only instances of unwelcome

acts or behaviour, but while interpreting a statute, we will have to

derive the meaning of the word “sexual harassment” taking into

account sub-clauses (i) to (v) as well. Sub-clauses (i) to (v) are all

illustrations. But when an allegation of sexual harassment is

made, though not coming within the parameters as specified in

sub-clauses (i) to (v), the act should have something to do with a

sexual advance either directly or by implication. Going by the

statute, only a few unwelcome acts had been delineated under

sub-clauses (i) to (v). It is possible that there might be other

unwelcome acts or behaviour which would amount to a sexual

advance or demand which the woman feels to be annoyed on

account of the fact that she is a woman.

8. Section 3 of the 2013 Act deals with prevention of

sexual harassment, which reads as under:-

“3. Prevention of sexual harassment.—(1) No

woman shall be subjected to sexual harassment at any

workplace.

(2) The following circumstances, among other

circumstances, if it occurs, or is present in relation to or

connected with any act or behavior of sexual

harassment may amount to sexual harassment:—

(i) implied or explicit promise of preferential

treatment in her employment; or

(ii) implied or explicit threat of detrimental treatment

in her employment ; or

(iii) implied or explicit threat about her present or

future employment status; or

(iv) interference with her work or creating an

intimidating or offensive or hostile work environment for

her; or

(v) humiliating treatment likely to affect her health or

safety”.

Section 3 creates an absolute prohibition to subject a women to

sexual harassment at workplace. There also, sub-section (2) of

Section 3 emphasises on any act or behaviour of sexual

harassment. Clauses (i) to (v) are instances which may occur in a

workplace. But still, a bare reading of sub-section (2) indicates

that the circumstances mentioned in clauses (i) to (v) are not

exhaustive. The words 'among other circumstances' clarifies the

said position. Any such circumstances, if it occurs, or is present in

relation to or connected with any act or behaviour of sexual

harassment alone can be treated as sexual harassment. In other

words, any act which tends to affect the women in the form of

clauses (i) to (v) in Section 3(2) would amount to sexual

harassment only if such eventualities occur and should be in

relation to or connected with any act or behavior of sexual

harassment. The purport of Section 3(2) is that, if any of the

eventualities mentioned under clauses (i) to (v) or any other

circumstances occur, it should be in relation to or connected with

any act or behaviour of sexual harassment.

9. Therefore, in order to constitute sexual harassment,

definitely there should be an attempt on the part of the

wrongdoer to do some act which was unwelcome or by way of

behaviour, either directly or by implication makes the victim to

feel that it amounts to sexual harassment.

10. Visakha v. State of Rajasthan & Others [(1997) 7

SCC 323] came to be decided at a time when there was no

statutory provision to provide for the effective enforcement of

gender equality and guarantee against sexual harassment and

abuse, more particularly against sexual harassment at

workplaces. Those guidelines were formulated to be strictly

followed in all workplaces for the preservation and enforcement

of the right to gender equality of working women. Directions

issued by the Apex Court in the said judgment were to remain in

force until suitable legislation is enacted to occupy the field. It is

thereafter that the 2013 Act came into force, which provided for

taking disciplinary action against such persons involved in sexual

harassment of women at any workplace and also the penal

consequences thereof. Chapter II of the Act dealt with

constitution of Internal Complaints Committee and every

employer of a workplace was bound to constitute a Committee

known as the Internal Complaints Committee. The constitution of

such Committees has also been specifically mentioned in Section

4. Chapter III deals with constitution of Local Complaints

Committee which authority has to function in respect of

complaints of sexual harassment from establishments where the

Internal Committee has not been constituted. Chapter IV deals

with complaint. Section 9 is relevant, which reads as under:-

“9. Complaint of sexual harassment.— (1) Any

aggrieved woman may make, in writing, a complaint of

sexual harassment at workplace to the Internal Committee

if so constituted, or the Local Committee, in case it is not so

constituted, within a period of three months from the date

of incident and in case of a series of incidents, within a

period of three months from the date of last incident:

Provided that where such complaint cannot be made

in writing, the Presiding Officer or any Member of the

Internal Committee or the Chairperson or any Member of

the Local Committee, as the case may be, shall render all

reasonable assistance to the woman for making the

complaint in writing:

Provided further that the Internal Committee or, as

the case may be, the Local Committee may, for the reasons

to be recorded in writing, extend the time limit not

exceeding three months, if it is satisfied that the

circumstances were such which prevented the woman from

filing a complaint within the said period.

(2) Where the aggrieved woman is unable to make a

complaint on account of her physical or mental incapacity

or death or otherwise, her legal heir or such other person

as may be prescribed may make a complaint under this

section.”

The compliant that should be given in writing by an aggrieved

woman is with reference to “a complaint of sexual harassment at

workplace”. Even an oral complaint can be given to the presiding

officer or any member of Internal Committee in the event the

complaint cannot be given in writing. There is a time limit

specified for giving such complaint as well. Section 10

contemplates a conciliation on receiving such a complaint and if

the matter is not settled through conciliation, an enquiry has to

be conducted in terms with Section 11. The enquiry has to be

conducted in accordance with the procedure prescribed as per

service rules applicable to the respondent. In the case of a

domestic worker, the Local Committee shall forward a complaint

to the police for registering a case under S.509 of I.P.C. if prima

facie, it is found that a case exists against the respondent. The

Internal Committee is given the power of a civil Court while trying

a suit under the Code of Civil Procedure, especially to summon

and enforce the attendance of any person and examining him on

oath, requiring the discovery and production of documents or any

other matter as may be prescribed. Chapter V deals with such

other steps that could be taken during the enquiry and after

receiving the enquiry report. Section 13 is relevant, which reads

as under:-

“13. Inquiry report.—(1) On the completion of an inquiry

under this Act, the Internal Committee or the Local

Committee, as the case may be, shall provide a report of its

findings to the employer, or as the case may be, the District

Officer within a period of ten days from the date of completion

of the inquiry and such report be made available to the

concerned parties.

(2) Where the Internal Committee or the Local Committee,

as the case may be, arrives at the conclusion that the

allegation against the respondent has not been proved, it shall

recommend to the employer and the District Officer that no

action is required to be taken in the matter

(3) Where the Internal Committee or the Local Committee, as

the case may be, arrives at the conclusion that the allegation

against the respondent has been proved, it shall recommend

to the employer or the District Officer, as the case may be—

(i) to take action for sexual harassment as a misconduct in

accordance with the provisions of the service rules applicable

to the respondent or where no such service rules have been

made, in such manner as may be prescribed;

(ii) to deduct, notwithstanding anything in the service rules

applicable to the respondent, from the salary or wages of the

respondent such sum as it may consider appropriate to be

paid to the aggrieved woman or to her legal heirs, as it may

determine, in accordance with the provisions of section 15:

Provide that in case the employer is unable to make

such deduction from the salary of the respondent due to his

being absent from duty or cessation of employment it may

direct to the respondent to pay such sum to the aggrieved

woman:

Provided further that in case the respondent fails to pay

the sum referred to in clause (ii), the Internal Committee or

as, the case may be, the Local Committee may forward the

order for recovery of the sum as an arrear of land revenue to

the concerned District Officer.

(4) The employer or the District Officer shall act upon the

recommendation within sixty days of its receipt by him.”

An order passed under Section 13(3) is also appealable u/s 18 of

the Act to the appellate authority as may be prescribed.

11. A reading of the provisions of the Statute clearly

envisages a complaint involving sexual harassment. Section 9

also makes it clear that the complaint in writing should be with

reference to “a complaint of sexual harassment at workplace”.

Further, once the Internal Committee after enquiry arrives at a

conclusion that the allegation against the respondent has been

proved, it shall recommend to the employer to take action for

sexual harassment as a misconduct in accordance with the

provisions of the service rules applicable to the respondent to

determine compensation etc. Therefore, when the statute had

been framed taking into account various aspects involved in the

matter, the complaint should be one relating to sexual

harassment. Section 3 of the Act is in the form of a prohibition.

The wordings used are “no woman shall be subjected to sexual

harassment at any workplace.” The judgment of the Delhi High

Court in Dr.Punita K.Sodhi (supra) also had been decided

before the 2013 Act coming into force wherein the Court had

gone to the extent of referring to discrimination on the basis of

sex.

12. Apparently, the 2013 Act does not contemplate a

situation of discrimination on the basis of sex whereas it

specifically deals with sexual harassment in the workplace.

Nisha Priya Bhatia (supra), was also a case where a complaint

was filed on 7/8/2007. The victim was being harassed by asking

her to join a sex racket running inside the organization for

securing quicker promotions and upon refusal to oblige, she was

subject to persecution. Enquiry was conducted in terms with the

judgment in Vishaka (supra). It is in the said background that

the Apex Court had the occasion to refer to the scheme of the

2013 Act, Vishaka (supra) guidelines and the Convention on

Elimination of All Forms of Discrimination against Women

(CEDAW). In the cases on hand, we are only concerned with the

provisions of the 2013 Act.

13. In the reference order, the learned Single Judge

proceeded on the basis that sexual harassment is to be construed

in the light of the provision contained in S.2(n) read with Section

3 of the 2013 Act as well as the provisions of Regulation 2(k) of

the University Grants Commission (prevention, prohibition and

rederessal of sexual harassment of women employees and

students in higher educational institutions) Regulations, 2015

('UGC Regulations, 2015' for short). Even in the UGC regulations,

'sexual harassment' has been given a meaning. Under the UGC

Regulations, 2015, 'sexual harassment' has been defined under

clauses (i) and (ii) of Section 2(k). Clause (i) itself refers to “an

unwanted conduct with sexual undertones" and then sub clauses

(a), (b), (c), (d) and (e) are mentioned, which are almost similar to

clauses (i) to (v) of Section 2(n) of the 2013 Act. Sub clause (2) of

S.2(k) indicates “any one (or more than one or all) of the

circumstances if it occurs or is present in relation or connected

with any behaviour that has explicit or implicit sexual undertones

and it is further specified under sub-clauses (a) to (e). Therefore,

even going by the UGC Regulations, sexual harassment has to

occur based on “an unwanted conduct with sexual undertone” or

“in relation or connected with any behaviour that has explicit or

implicit" "sexual undertones". Therefore, the very concept of

sexual harassment in a workplace against a woman should start

from an express or implied sexual advance, sexual undertone or

unwelcome behaviour which has a sexual tone behind it without

which provisions of Act 2013 will not apply. In Anil Rajagopal