Single instance of sexual harassment can be considered ‘continuing offence’. Madras HC

Single instance of sexual harassment at workplace can be considered ‘continuing offence’, not barred by limitation: Madras High Court

In a significant ruling, the Madras High Court recently held 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.

Therefore, such an offence should not be barred by the six-month period of limitation mandated by Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act [PoSH Act], the Court said.

In an order passed on June 11, 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 victimisation by those around her or suppress such complaint and live under constant fear and trauma.

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.

In the process, the complainant continues to suffer even after the incident of sexual harassment, the judge said.

“Therefore, in such cases where the alleged offence is a grave one, and has caused constant trauma and fear for the victim, the offence must be considered a continuing one, the judge said. 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,” the High Court said.

Justice Bharatha Chakravarthy apologised to women litigants who were asked uncomfortable questions during cross examination.

The Court was hearing a petition filed by one R Mohanakrishnan, 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 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.

Therefore, the ICC enquiry had commenced more than four years after the alleged incident, it was pointed out.

As per the PoSH Act, a complainant can file a written complaint either with the internal or local complaints committee within three to six months of the sexual harassment incident.

Therefore, the ICC proceedings and the enquiry report must stand vitiated by the statute of limitation, the petitioner argued.

The State government opposed the plea.

The Court agreed with the State’s submission that the woman had been traumatised by the incident and had confided in some colleagues.

It had taken her much counselling to finally lodge a complaint.

Even after the complaint, someone had “leaked” a copy of the complaint on YouTube without masking her name and the complainant had lived in constant fear of her family coming to know of the incident and resultant secondary victimisation by the society, the Court noted.

“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 High Court said.

The Court, therefore, refused to quash the ICC enquiry report in its entirety.

However, it noted that the petitioner had not been given a chance to cross-examine all witnesses.

Therefore, Justice Chakravarthy directed that the ICC, which had already concluded its enquiry in the case, must be re-constituted with the same composition as far as possible.

The committee should then address the petitioner’s grievances in relation to the cross-examination of witnesses, the Court said.