Single Instance Of Sexual Harassment At Workplace Can Be Considered 'Continuing Offence', Not Barred By Limitation: Madras HC

It is definitely most reassuring, most re-energizing and most refreshing to note that while catching the bull by the horns, we see that the Madras High Court in a most learned, laudable, landmark, logical and latest judgment titled R Mohankrishnan vs DIG in W.P.No.10707 of 2024 and W.M.P.Nos.11796 & 11797 of 2024 that was reserved on 25.04.2024 and then was finally pronounced on 11.06.2024 has minced just no words to hold unequivocally that even an isolated offence of sexual harassment at the workplace must be considered as a ‘continuing offence’ if it is grave in nature and is causing constant trauma and fear in the victim’s mind. Most laudably, the Court did not hesitate to hold clearly, cogently and convincingly that therefore, such an offence should not be barred by the six-month period of limitation as is mandated by Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act [PoSH Act]. Very rightly so!

It must be mentioned here that the Court was hearing a petition that had been filed by R Mohanakrishnan who is a Superintendent in the district police office in the Nilgiris district in Tamil Nadu challenging an enquiry report of the Internal Complaints Committee (ICC) in the rape complaint filed against him by one of his female colleagues. The petitioner in his defence argued that the alleged incident of rape had taken place in April 2018. But the woman lodged a formal complaint with the local police much later and that was then forwarded by the police to their employer only in December 2022. It was pointed out that therefore, the ICC enquiry had commenced more than four years after the alleged incident. The Single Judge Bench comprising of Hon’ble Mr Justice D Bharatha Chakravarthy said that in most cases of sexual harassment at the workplace, a complainant battles the dilemma of whether to risk making a complaint and face secondary victimization by those around her or suppress such complaint and live under constant fear and trauma. The Bench also opined that it might take the complainant a long time to finally muster up the courage to make a formal complaint and testify before the Internal Complaints Committee (ICC) under the PoSH Act. The Bench added that in the process, the complainant continues to suffer even after the incident of sexual harassment.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice D Bharatha Chakravarthy sets the ball in motion by first and foremost putting forth in para 1 that, "This Writ Petition is filed challenging the enquiry report dated 06.03.2023 submitted by the 3rd respondent-Internal Complaints Committee (ICC), The Nilgiris District. By the said report, the ICC took into account that a criminal case was already registered against the petitioner/delinquent and recommended that in respect of every incident of sexual harassment committed by him, disciplinary action should be taken. The ICC also recommended that the petitioner be continued under suspension, till the completion of the departmental proceedings. In the event of revocation of suspension, the petitioner should be transferred to any distant place, outside the Nilgiris District."

To put things in perspective, the Bench envisages in para 8 that, "As far as the complaint of Mrs.AAA is concerned, firstly it can be seen that at the first instance in her complaint dated 05.12.2022, it is stated that the petitioner would frequently call her and would make sexually coloured conversations. He has been sending WhatsApp messages and she was afraid of even complaining the same to the superior. Even though she was counselled by her co-employees, her mental agony increased day by day and therefore, she sought action. Upon being counselled by the employer, she opened up and came up with the serious allegations that during April 2018, the petitioner came to her house in the morning and forcibly had sexual intercourse. She was unable to disclose it to anybody. Upon such a statement on 08.12.2022 and the preliminary enquiry revealed prima facie grounds to proceed, therefore, a case in Crime No.12 of 2022 was registered by the concerned jurisdictional police."

Do note, the Bench then notes in para 8.1 that, "As a matter of fact, the subsequent statement dated 19.12.2022 requires further consideration. She states that despite assurances given by the employer and everybody, the copy of the FIR with her name was shared by some unknown persons on a YouTube channel. She was afraid that her son would come to know about the same. She was very much concerned that the matter should not be known to her son. Thus, when the offence complained of is a serious one having the effect of causing grave mental trauma and stress to the victim, pushing her to a dilemma not to reveal or complain due to the fear of secondary and tertiary victimization, on the other hand, she is also unable to withstand, swallow or suppress the same, then that state of the victim fits the definition of undergoing continuous sexual harassment. So long she undergoes such a phenomenon, the same is directly attributable only to the perpetrator and therefore would amount to a continuing offence. Such a phenomenon is not just the effect of the act, but is the injury itself."

Be it noted, the Bench notes in para 8.2 that, "The injury is not complete just by the forcible physical intercourse. The injury adds up every day when the victim is thereafter made to silently keep quiet and also face the petitioner at the workplace. Further, the injury is confounded by fear of secondary and tertiary victimisation."

Most significantly, the Bench then mandates in para 8.6 holding that, "The instant case is not an isolated incident of misconduct such as passing lewd remarks or inappropriate touching etc. In such a solitary instance, the victims cannot be permitted to withhold and exercise their right of remedy to their wish and time, thereby preventing the delinquent employee from having a fair and impartial hearing to be in a position to defend himself effectively. Whereas in cases of serious allegations such as rape or continuous molestation or harassment, the same would be a continuing misconduct and every day until the situation is redressed or brought to the notice of the appropriate authority would give rise to a fresh cause of action. The purpose of the provision of Limitation in Section 9 has to be understood in this context. Thus, in this case, I reject the submissions of the learned counsel for the petitioner that merely because the incident happened in the year 2018, the complaint cannot be entertained by the local committee in the year 2022. The Judgments relied upon by the learned counsel for the petitioner in Prof. Dr.Saswat Samay Das’s case (cited supra), Reeja’s case (cited supra) and Mukesh Khampariya’s case (cited supra) do not deal with serious continuing misconduct as in the instant case."

It cannot be lost sight of that the Bench hastens to add in para 8.7 stating that, "Adding further, the allegations made against the petitioner are that he is a serial predator. Even though some of the victims have not stood by their statements during the enquiry, two other victims have deposed about the sexual harassment meted out to them, though no serious allegations as in the case of Mrs AAA."

It is worth noting that the Bench decisively holds in para 8.8 that, "As held by the Hon’ble Supreme Court of India in Mudrika Singh’s case (cited supra) and Dilip Paul’s case (cited supra), the petitioner cannot rely upon hyper-technicalities. Therefore, I answer the question against the petitioner that the complaint is not barred by limitation and as such is not violating of Section 9 of the Act."

Most decisively, the Bench postulates in para 8.9 that, "Even the other contentions of the learned counsel for the petitioner regarding non-supplying the complaint within the time frame, not acting upon the report within the time frame etc., as noted supra, are only timelines intended to ensure prompt action and are not grounds for the delinquent to wriggle out of punishment or stall the very inquiry itself. The petitioner has to defend the charges in the inquiry on merits."

As we see, the Bench rightly points out in para 9 that, "In this case, after the enquiry report is received, a charge memorandum containing two charges, in respect of the sexual harassment meted out to Mrs AAA alone has been issued. In this connection, it can be seen that such a charge has been specifically put to the victim and enquiry of the ICC has already been specifically made known to the delinquent employee and the ICC had already completed the enquiry and arrived at a finding. The finding of the ICC is that the delinquent employee has misbehaved with Mrs AAA, Ms BBB and Ms CCC (3 victims). The charge memo speaks only in respect of Mrs.AAA alone. Therefore, the very issue of the charge memorandum on 01.12.2023 itself can be termed only as by way of abundant caution/and it was superfluous. This is not a case where the petitioner can plead that he did not know what the allegation was. Even as per the statement of the petitioner, after his request, copies of the complaint and the statements were duly provided to him."

More to the point, the Bench rightly observes in para 9.1 that, "A reading of the complaint and the further statements convey the allegations which were put against the petitioner. Therefore, this is also a case where Mrs.AAA, seems to have suffered serious trauma and stress and thus, in tune with the Judgment of the Hon'ble Supreme Court of India in Aureliano Fernandes case (cited supra) (Paragraph No.51), the ICC was right in protecting her from facing the delinquent directly thereby avoided exposing the victim once again before the delinquent. However, even in a case where sensitivity requires that the victim not be exposed before the perpetrator, the right to cross-examination is still a valuable facet to ensure fairness and impartiality in the enquiry and the principles of natural justice."

As we see, the Bench concedes in para 9.6 that, "Considering the sensitivity of the issue and the rule position, it cannot be said that the entire action of the ICC in recording the statements was violative of principles of natural justice, but in respect of the witnesses who are not examined on behalf of the petitioner/delinquent, but on behalf of the prosecution to establish the charges, an opportunity needs to be given to the petitioner to cross-examine the witnesses. Though the committee may be right in not exposing the victims directly to the delinquent, at least, the cross-examination should be done based on the questions that are prepared by the petitioner. Such questions depending on the nature of the witness should be permitted to be put before the witnesses directly by the delinquent. However, in respect of Mrs. AAA alone questions can be put by any local commissioner/employee who may be nominated by the petitioner. The absence of such an exercise would not comply with the opportunity of hearing and effectively putting forth the case of the petitioner to satisfy the mandate of Article 311 of the Constitution of India."

What’s more, the Bench then further adds in para 9.7 that, "Therefore, to that extent, the petitioner is bound to succeed, however, the matter has to be remitted back to the ICC from the stage in which the enquiry is to be continued. Accordingly, I answer the question that the impugned enquiry report would stand partially vitiated for the flaw of not providing the petitioner an opportunity to cross-examine the witnesses."

Finally, the Bench then concludes by holding in para 10 that, "Given the aforesaid findings, the Writ Petition is allowed on the following terms:-

(i) The impugned enquiry report of the 3 rd respondent dated 06.02.2023 in C.No.28/DSP/RURAL SDO/UDLM/2023 shall stand set aside;

(ii) The proceedings of the 3rd respondent including the statements recorded so far, questions which were put to the witnesses and their version, and questioning of the delinquent employee shall all hold good;

(iii) The ICC as far as possible in the same composition shall continue with the enquiry in the manner hereinafter delineated. It is made clear that if anyone or some members in the ICC are not available, the enquiry being statutory in nature and all the procedures being recorded stagewise, shall be continued from the present stage by replacing with a new member, if necessary;

(iv) The ICC shall reassemble/reconstitute and such committee shall conduct the next enquiry on 01.07.2024;

(v) On the said date, the petitioner shall appear before the committee and among all the witnesses who are already examined, the petitioner can indicate the names of the witnesses whom he would prefer to cross-examine, such witness shall be re-summoned by the committee for cross-examination and the same may be permitted by the ICC;

(vi) On such adjourned date, without fail on the dates of the witnesses being present, the petitioner shall cross-examine them. If the petitioner fails to cross-examine the witnesses on such date fixed by the ICC, the petitioner will forfeit his right to cross-examine the particular witness;

(vii) As far as the victims – Mrs.AAA, Ms.BBB and Ms.CCC are concerned, if the committee is of the opinion that the victims need not be exposed directly before the delinquent, then the victims shall be protected by a screen and answer the questions or then the delinquent/petitioner shall prepare a list of questions and the questions can be administered by any other employee or who may be chosen by the petitioner, who may not be the rank higher than that of the petitioner, viz., the Superintendent; If the petitioner is unable to make such a choice, such questions can be administered by the ICC itself to the victims;

(viii) The petitioner had already examined the witnesses on his part and if he chooses to examine any other witnesses, he can also do the same. After the examination/cross-examination, the petitioner can also examine himself, if he chooses to;

(ix) After completion of evidence, the petitioner can also be permitted to make such oral or written arguments before the ICC and the committee shall arrive at a finding and submit its report afresh by objectively considering the evidence on record, without reference to the present report which is being set aside by this Court;

(x) The 3rd respondent–ICC shall complete the entire exercise within 60 days and as far as possible conduct the proceedings on a day-to-day basis and shall make every endeavour to complete the proceedings as directed above within 60 days from 01.07.2024, i.e., on or before 31.08.2024;

(xi) Upon receipt of the enquiry report by the ICC, the disciplinary authority shall take further steps to complete the disciplinary proceedings as the case may be, as if it received the enquiry report pursuant to the charge memorandum under 17 (b) of the Rules, within a period of four weeks therefrom. If the disciplinary authority is of the opinion that a punishment has to be imposed on the delinquent, then issue a second show cause notice and a decision should be arrived only after hearing the petitioner. Such exercise shall be completed within four weeks from the date of receipt of the enquiry report by the 3 rd respondent – ICC;

(xii) No costs. Consequently, connected miscellaneous petitions are closed."