Case law – Participation Of Accused In Appraisal Process Of Complainant

The Calcutta High Court has recently held that the actions of an accused under the Prevention of Sexual Harassment in the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”), in being party to an appraisal report of the complainant thereunder, “vitiates and makes a mockery of the entire process.”

In hearing a contempt application filed by the complainant/petitioner against the accused, his company and its agents, a single-bench of Justice Moushumi Bhattacharya directed the respondents/contemnors to prove that they had not been in “contumacious violation” of the Court’s orders, and that the impugned appraisal report was unconnected to the charges under the POSH Act, invoked by the petitioner against the accused/contemnor no 5. It was held:

“A person against who a complaint of sexual harassment has been made cannot, under any circumstances, be a party to the performance appraisal of the complainant…Rule 8(a) of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 specifically empowers the Complaints Committee to recommend restraining the respondent from reporting on the work performance of or writing the confidential report of the aggrieved woman. The work has to be assigned to another person. The 2013 Act strives to secure a safe environment to a woman in her workplace. The acts of the alleged contemnors have made a mockery of the object of the Act and the safeguards introduced therein.

Before going into the allegations and counter charges made by the parties, the alleged contemnors, particularly the alleged contemnor no. 5, must prove that there has been no contumacious violation of the judgment and order passed by this Court on 11th August, 2022 and must also show that the alleged contemnor no. 5 that the performance appraisal of the petitioner was unconnected to the charges levelled by the petitioner against the alleged contemnor no. 5.”

Brief facts of the case:

The applicant/petitioner in these contempt applications had accused respondent/contemnor no 5 of sexual harassment at the workplace, under several sections of the POSH Act, 2013.

During the pendency of the aforesaid matter, the petitioner/complainant claimed that the accused/contemnor no 5 had allegedly participated in an appraisal process of the complainant, while her petition was still being heard by the Court. Subsequently, judgement of the Court was delivered on the 11th of August 2022.

It was argued by the accused/contemnor no 5, that he was not the only person who participated in the appraisal process, and that his appraisal of the complainant had been reviewed by one of his colleagues, contemnor no 3. As such, it was submitted that such a review and a subsequent improvement in the scores of the petitioner would point towards impartiality in the review process, and that the status of the contemnor no 5 as an accused, would have no bearing on the appraisal of the complainant.

Observations of the Court

In holding that the actions of the accused in taking part in an appraisal process of the complainant was squarely against the provisions envisaged in the POSH Act, 2013, Justice Bhattacharya noted that even an improvement and review of grades or scores of the complainant would not give the entire process a look of impartiality or purity, since the very participation of the accused in the appraisal process would have vitiated it altogether. The Bench opined:

“The alleged contemnor no. 5 is admittedly a party to the appraisal made of the petitioner’s performance from December, 2021 – 31st March, 2022. The petitioner had levelled allegations of sexual harassment against the alleged contemnor no. 5. The defense taken on behalf of the alleged contemnors is that the appraisal was reviewed by the alleged contemnor no. 3 with an improvement in the scores and gradation. The very fact of the improvement would stand testimony to the subversion, prima facie, of the checks against sexual harassment under the 2013 Act.

Admittedly, the appraisal was prepared while the writ petition filed by the petitioner was being heard by the Court. The result of the appraisal was completed and uploaded on the website of the company for being viewed by the petitioner before the Court delivered the judgment in the writ petition on 11th August, 2022. The appraisal was uploaded on 30th July, 2022. The factual sequence leads to the presumption of foul play. The alleged contemnor no. 5 participating in the appraisal vitiates the process altogether…It is inconceivable that the alleged perpetrator arrogated to himself the power to assess the performance of the complainant at the work place and influence the petitioner’s future prospects.”

Accordingly, the contemnors were directed to keep the appraisal report of the complainant under strict confidentiality such that no person in the company could circulate or make the proposal known to anyone within the company, which could have a bearing on the outcome of the contempt application.

Matter has been listed for further hearing on 4th August 2023.