The POSH Annual Report is much more than a mere formality; it is a statutory obligation under India’s POSH Act that offers a reflection of how seriously an organization takes workplace safety. Every organization under the Act is required to submit this report annually, capturing details about complaints received and resolved, pending cases, and awareness programs conducted throughout the year. It is a legal requirement that must be filed with the appropriate district officer, emphasizing the importance of accountability and transparency within organizational cultures.

Welcome to Posh Conversations—a space where voices that matter come together to discuss safety, dignity, and inclusion in the workplace. In today’s blog, we’re diving deep into the nuances of the POSH Annual Report, a document that every organization must file but few truly understand. From what the report captures to why it matters, we aim to simplify, clarify, and shed light on this crucial element of workplace compliance.

Why the Emphasis on the POSH Annual Report?

One of the common inquiries from organizations is why so much emphasis is placed on this report. The POSH Annual Report is a measure of accountability and it demonstrates to regulators and stakeholders that an organization addresses complaints through due process. It sends a strong internal message that complaints are acknowledged and tracked, contributing to not just compliance but also fostering a culture of awareness and respect.

Answering Common Questions

• Who Prepares and Submits the Report

The Internal Committee (IC) is responsible for preparing the annual report, though submissions are typically made by the employer or HR. Once submitted, the district officer forwards a brief report to the state government.

• Does the Report Contain Names or Case Details?

Absolutely not. The POSH Annual Report maintains confidentiality by only reporting figures such as the number of complaints received, resolved, pending, and awareness activities conducted.

• What If There Were No Complaints?

Organizations must still file a “nil report,” which is a valid submission even if no complaints were registered during the year.

• Consequences of Non-Compliance

Failure to file the report can lead to penalties and raises red flags during audits. It is increasingly scrutinized by boards, investors, and external stakeholders.

• Filing for Locations with Fewer Than 10 Employees

According to Section 21, locations with fewer than ten employees are exempt from submitting an annual report.

• Who Signs the Report?

The report is typically signed by the Internal Committee’s Chairperson or Presiding Officer

• Including Conciliation Details

Even if a case is resolved amicably through conciliation, such details must still be reflected in the annual report.

• Awareness Sessions and Workshops

The report should declare all workshops, training sessions for IC members, and awareness programs conducted for employees through various formats.

• Determining the District office for Submission

Organizations need to identify the correct district officer based on their location. Contact details are usually available online, and verification is recommended to ensure accuracy.

The Story Behind the Numbers

It is a misconception that the report is only about numbers. The numbers tell an important story about the organization’s awareness, response to complaints, and effectiveness of the IC. A report with no complaints does not necessarily equate to a problem-free environment but could indicate a lack of awareness or reporting issues within the company.

It is a misconception that the report is only about numbers. The numbers tell an important story about the organization’s awareness, response to complaints, and effectiveness of the IC. A report with no complaints does not necessarily equate to a problem-free environment but could indicate a lack of awareness or reporting issues within the company.

What to include?

• Number of complaints of sexual harassment received in the year
• Number of complaints disposed of during the year
• Number of cases pending for more than ninety days
• Number of workshops or awareness programme against sexual harassment carried out
• Nature of action taken by the employer or District officer

Annual Report Format

To download the Annual Report Format Click Drafts – “POSH Annual report format ” (27314 downloads )

The post Understanding the POSH Annual Report – Annual Report Format first appeared on Metis POSH Consulting Service LLP.

Petitioner was working as District Programme Officer, Kushinagar when he was suspended by an order passed by Chief Secretary Child Development and Nutrition, Uttar Pradesh on grounds that words said do not amount to sexual harassment, the internal complaint committee was not duly constituted under the Section 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Counsel for petitioner submitted that as per the statement of the complainant, the petitioner had called her fatty and had often suggested that she go on evening walks with him and also invited her to have meals with him. It was argued that this by itself does not constitute sexual harassment. It was also argued that procedure prescribed for dealing with such complaints was not followed by the internal complaints committee.

Per contra, counsel for respondent argued that body shaming of the complainant and all events taken together constituted sexual harassment under the Act. It was argued that since the petitioner’s statement was recorded, he could not now say that he could not put up his defence. He should have filed an application before the internal complaints committee for cross-examination.

An FIR lodged against the petitioner regarding sexual harassment of another female was also brought on record before the Court to argue that many women working in petitioner’s department have felt uncomfortable. The Court observed that suspension is not a punishment but a measure to prevent the delinquent from influencing the proceedings against him. “An employee is placed under suspension by the employer only to ensure that he is not able to influence the enquiry in any manner, in as much as he is not able to interfere with the evidence or also in such cases where the employer finds it necessary to place an employee under suspension so as to have smooth disposal of disciplinary proceedings.” Holding that a head of a department’s suspension pending inquiry leads to confidence building, the Court observed that the way in which the remark was made “may” constitute sexual harassment, however, it refrained from making any final remarks as the disciplinary proceedings were ongoing. It held that prima facie case was made out for suspension of the petitioner. The Court disposed of the writ petition, directing the petitioner to approach the appellate authority.

Download the Judgment copy here – Allahabad HC - Suspension Of HOD In Sexual Harassment Case (2085 downloads )

The post Allahabad HC – Suspension Of HOD In Sexual Harassment Case first appeared on Metis POSH Consulting Service LLP.

A recent survey indicates a 31% increase in complaints during the 2022-23 fiscal year compared to the previous year, reflecting a significant rise in reported incidents. This upward trend is projected to persist into 2025. However, there has also been a rise in the number of false complaints. The troubling misuse of the policies framed to protect victims of harassment can have severe and far-reaching consequences.

The Vishaka Guidelines, established by the Supreme Court of India in 1997 to address sexual harassment in the workplace, gave birth to the POSH Act. The crucial legislation was enacted to create a safe working environment for women. Unfortunately, when false complaints are made, the very foundation of the Act gets undermined.

Understanding false complaints

Any complaint filed under the POSH Act where the complainant has made intentionally false allegations against the respondent, with an intention to malign their reputation are termed as false complaints. In fact, the courts are also calling out a recurring pattern in the blatant misuse of law through the false complaints route. Late last year, the Supreme Court noted a ‘worrying trend’ of disgruntled partners seeking to term long-term consensual relationships as harassment under penal laws.

However, non-availability of evidence should not be construed as false complaints.

Serious ramifications

False complaints may be driven by personal vendetta, a desire to save their own skin, or worse, as a prank. Regardless of motive, the ramifications of false complaints are nothing but devastating for all parties involved and may include loss of reputation and even career disruption. Moreover, after a false complaint, employees may become excessively cautious and may begin to constantly second-guess their behavior in order to steer clear of even the smallest hint of harassment.

The impact on genuine victims of false complaints is profound, as each false accusation undermines trust and makes it more difficult for real victims to come forward. Despite neutral investigations, doubt can taint new cases, causing genuine victims to fear that their reports will not be believed.

Most importantly, this erosion of trust extends to the POSH Act itself. Many employers and employees are of the view that this Act is problematic rather than protective, and allows frivolous complaints and misuse. The prevalence of these kinds of complaints reinforce these misconceptions, undermining the credibility of genuine ones and the critical purpose of the Act.

False complaints can also significantly drain company resources, requiring extensive time for investigations, documentation, and legal procedures. This resource drain is particularly problematic for organisations that already view POSH as a challenging area, as it exacerbates existing concerns and leads to a pervasive mistrust in the system.

The false complaints can create a toxic work environment, resulting in fissures within teams, reducing morale, and fostering a culture of suspicion. Employees may become hesitant to interact with colleagues, fearing false accusations, which stifles collaboration and productivity. The cumulative effect of these factors can severely undermine the overall workplace atmosphere and efficiency.

Punishments

The IC should first investigate sexual harassment claims and judge whether they are true or false. To do this, the IC should follow due process and conduct a thorough investigation while ensuring it is unbiased and impartial.

Under the POSH Act, if an inquiry committee finds that a sexual harassment complaint is false or made with malicious intent, the complainant could face serious consequences, including termination of employment. The purpose of this is to prevent false or frivolous claims, while ensuring that the grievance redressal process remains fair and just for everyone involved.

How organisations can address the issue

To mitigate the impact of false complaints, organisations should adopt a balanced approach that upholds the integrity of the POSH Act, while protecting individuals from wrongful accusations at the same time.

It is also imperative for organisations to ensure that the ICs are in place and that all investigation processes are thorough, impartial, and fair. For this, organisations must also provide training to the ICs on how to handle all complaints objectively and sensitively.

That apart, there should be clear consequences for those found to be making false complaints. This will majorly help deter individuals from misusing the system, while reinforcing the importance of genuine reporting.

Most importantly, organisations must conduct regular training sessions on the importance of the POSH Act and the ramifications of false complaints, which can help foster a culture of trust and transparency. Educating employees about the serious consequences of false reporting can act as a deterrent.

Conclusion

While the rise in false complaints is a troubling trend, it is crucial to remember the original intent behind the POSH Act – to create a safe and inclusive workplace for all. By addressing the issue of false complaints head-on and implementing measures to protect both genuine victims and the wrongfully accused, organisations can uphold the integrity of their workplace policies and ensure a respectful and supportive environment for everyone.

By adopting a balanced approach, including robust investigation processes, clear consequences, support systems, and continuous education, organisations can effectively mitigate the impact of false complaints and maintain a fair and safe workplace.

The post The ramifications of false complaints in the workplace first appeared on Metis POSH Consulting Service LLP.

To create a culture of trust within your team, sexual harassment complaints must be handled with care, professionalism, and legal awareness. By responding effectively, you not only protect your team members but also strengthen your organisation’s commitment to gender equality, respect and inclusivity.

As the first point of contact in the Prevention of Sexual Harassment (POSH) cases, a manager has several key responsibilities that cover the legalities, the complainant, and the rest of the team.

Providing support

The first step is to give them your time. Please do not postpone meetings with employees when they specifically say they need to discuss something important or personal.

You must provide a safe, empathetic environment for the complainant to share their experience without judgement. Refrain from asking questions which sound biased and prejudiced. Remain impartial and avoid making assumptions or taking sides until a formal investigation is conducted. It’s not your job to make a decision or judgement, that’s for the internal committee, your role is to guide them on the next steps they can take.

Once you realise that the issue being reported to you by the employee falls under the purview of POSH, your job is to inform them about your company’s POSH policy. You can then help them reach out to the Internal Complaints Committee to make a formal complaint if that is what they want to do. Do not push them to proceed in a manner that makes them uncomfortable—the decision should be their own. Your role is to present the various options they have going forward. You may even need to seek guidance from your HR if you are in doubt about how to proceed.

Once the POSH investigation begins, support the concerned parties by allowing them time to attend the ongoing meetings and provide any assistance required. This could involve managing workloads and time-off.

Dotting the ‘i’s and crossing the ‘t’s

Never forget that sexual harassment is a serious issue that involves many legalities. As the manager, you need to make sure that these rules are respected.

The most basic rule is to ensure confidentiality. Ensure that the details shared are only disclosed to relevant parties as needed. If in doubt, don’t say anything and check with HR or the IC. Ensure the rest of your team is not discussing the case in the workplace. If confidentiality has been broken, you should address it immediately by telling the parties to refrain from talking about it and report it to the IC.

Make sure that you document every step and detail. Accurately note down the complaint, dates, times, locations, and specifics of the incident while maintaining the complainant’s confidentiality. You will need this information if and when the IC requests you to attend the case proceeding as the manager of the involved parties.

Use this information to cooperate with the IC If you are called during the investigation as a witness or stakeholder. They may need the documents or evidence you have collected or any feedback necessary for the case. Please stay neutral and provide every piece of information that is in your possession.

Managing the rest of the team

As a manager, building a respectful culture is key. The complainant must be protected against any form of retaliation, whether subtle or blatant. As a manager, you should keep an eye out to ensure that the complainant is protected from any further victimisation or retaliation from the team, the accused, or even yourself. You should have the self-awareness to make sure that your behaviour towards them does not change for the worse, particularly in terms of your managerial duties, such as handing out work assignments or performance reviews.

Managers should always stay informed about updates on company POSH policy and ensure their teams are trained on these protocols to foster a respectful workplace. Set up awareness sessions to educate them on any changes and ensure that every one of your employees has completed the required POSH modules.

Communication is key. Take the opportunity to talk about a safe work environment with your team members in your meetings. Provide an environment where employees can reach out without fear of judgment or retaliation. Before team outings or office events, reinforce the company code of conduct, responsible drinking, and safe transport.

Working with IC as an ally

As a manager and primary point of contact for the team, you have an opportunity to set the right tone and build a positive team work culture in a gender-diverse group. To give the right impetus to your efforts, working together with the Internal Committee as a partner and ally could prove truly effective. Employing the IC’s expertise to identify key points in the team’s journey and emphasizing good practices through the year can be a gamechanger. This will ensure that the ball doesn’t drop at any point and interventions are not a knee-jerk reaction when complaints are filed. Instead, a proactive approach towards POSH can create a healthy camaraderie and respectful attitude among the team.

Building a better team

It is crucial to put into practice these simple yet essential strategies for handling POSH complaints to create a safe and open environment for your team. Doing so will make team members feel more supported and secure, leading to better work outcomes. Happy employees who trust that their manager ‘has their back’ are more likely to work better together.

As a team manager, you can help build a better team and work culture by creating a supportive environment and ensuring that allegations are handled with care and professionalism.

The post Manager’s role in handling reports of sexual harassment? first appeared on Metis POSH Consulting Service LLP.

After seven long years, the redacted version of the report was released, which shines a glaring light on the disturbing gender exploitation that exists in the Malayalam film industry. The report pointed out several crimes against women, including minors, and the existence of a ‘mafia’ that controls the whole industry. Here are some of the major findings:

• Sexual abuse and casting couch: The committee interviewed women from the industry, who said they had to face unwanted physical advances and rape threats even before they commenced work. Women also stated that they were coerced into exchanging sexual favours for job opportunities, and had to face denial of employment or career advancement if they refused.
• Lack of safety on the film set: Many men, influential in the industry, were known to knock on the doors of the rooms of women artists. To circumvent this, women resorted to bringing their parents or close relatives to the set and their accommodations.
• Inadequate facilities on set: Women artists said they were put through a lot of hardship given the inadequate facilities, such as changing rooms and toilets, for them on set, especially in outdoor locations.
• Poor working conditions: Junior artists, who were interviewed by the Hema committee, claimed they were “treated worse than slaves”, having to work for nearly 19 hours at poor remuneration. They also said intermediaries misappropriated a good part of their payments.
• Cyberthreats and cyberbullying: Artists, who refused to comply with the demands of those powerful in the industry, had to face the threat of online harassment. Cyberbullying, public threats, and defamation posed significant challenges for them.

Although the report is specific to the Malayalam film industry, the sad truth is that a similar culture exists across various industries, and the findings of the Hema Committee resonate with the challenges women face in other industries as well.

Recently, renowned actor Rahul Bose sought to know why no other industry has constituted committees to look into the increase in cases of sexual harassment. He called for the need for greater awareness to empower women to speak up and fight harassment.

A few days ago, a committee was formed in West Bengal to investigate sexual harassment of women in the Bengali film industry. It has been reported that the Tamil and Telugu film industries are also likely to establish committees with the aim to protect women in the respective industries.

Meanwhile, in the Kannada film industry, though actor Sanjjanaa Galrani mooted the establishment of the Sandalwood Woman Artist Association, the Karnataka Film Chamber of Commerce has opposed the move to set up a panel akin to the Hema Committee. Earlier this month, at least 150 persons, including actors, writers, and directors sent a formal letter to Chief Minister Siddaramaiah to form a committee to look into the sexual abuse allegations in the Kannada film industry, also known as Sandalwood.

The #MeToo movement that gathered steam in 2017 was a watershed moment, given that it helped highlight gender discrimination and harassment across various sectors globally. It empowered countless individuals to share their experiences and brought significant attention to the need for systemic change in workplaces.

The Sexual Harassment of Women at Workplaces (Prevention, Prohibition and Redressal) Act, 2013, more commonly known as the PoSH Act, came into effect in December 2013. However, it was only in 2018 that the Securities and Exchange Board of India mandated all listed companies to disclose the data on sexual harassment complaints in their annual reports. As per data available, in 2013-14, when PoSH was implemented, 161 cases were reported. A year later, this number surged to 465. The numbers have continued to rise till 2020-21. Following the outbreak of the COVID-19 pandemic and subsequent work-from-home option, the number of cases dropped to 586 cases across 300 companies, down from 961 cases the previous year. In 2021-22, the number increased again to 767 cases, followed by a spike the following year reaching 1,160 cases, a whopping 51.2% jump.

The release of the Hema Committee report serves as a wake-up call not just for the Malayalam film industry, but for all sectors where gender exploitation and harassment persist. With 80% of women in India employed in the unorganised sector—often facing informal work, low wages, and job insecurity—the report aims to inspire change and improve conditions for women everywhere.

The Hema Committee report has shed much-needed light on the crucial gaps and challenges in the implementation of the PoSH Act. Here are some of the top takeaways from the report that all industries should focus on to ensure women’s safety:

• Lack of awareness: One of the biggest challenges identified is the widespread lack of awareness of the PoSH Act among employees, especially in the small and medium-sized enterprises (SMEs) sector. This can be addressed by creating awareness among the entire workforce.
• Inadequate implementation: Several organisations have either not formed Internal Committees (ICs) or have ICs that do not function effectively, which undermines the Act’s impact. Organisations can comply with the Act by forming these committees and ensuring that they function properly in letter and spirit.
• Training gaps: There is an urgent need for regular and structured training programmes to educate both employees and management on the PoSH guidelines and responsibilities. Regular training programmes and awareness campaigns should be part of an organisation’s annual calendar.
• Accountability issues: The report highlights a lack of accountability in enforcing the PoSH Act, with many complaints either being mishandled or worse, ignored. This challenge can be addressed by ensuring transparency and accountability in the functioning of the ICs.
• Protection for informal sector workers: Women in the informal sector often face the brunt of workplace harassment; yet, there are very few mechanisms to address their concerns. The workers’ associations or unions should put in place mechanisms to address the problems of these women.

While there have been strides in implementing the PoSH Act, much more needs to be done to ensure that workplaces are truly safe and inclusive for women. From increasing awareness and training to enhancing accountability and protections for women in informal sectors, the road ahead requires collaborative efforts from industries, regulators, and society at large.

It’s time to turn awareness into action and ensure that every woman feels empowered and protected in her place of work. To know more about what to do to make your workplace safe and inclusive for women, get in touch with us.

The post 5 key findings of the Hema Committee report first appeared on Metis POSH Consulting Service LLP.

The Prevention of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 recognizes that sexual harassment often happens in isolation or in circumstances where evidence is difficult to come by.  

In several of these incidents, securing evidence like, messages, recordings, video footage, screenshots, etc… becomes a challenge. This leaves the committee with the word of the victim against the word of the perpetrator. 

The Evidence Act of 1872 states the importance of proof to establish the existence of a crime. Criminal cases require evidence ‘beyond reasonable doubt’ to prove facts and hold someone guilty. However, civil cases are proved based on the principle ‘Preponderance of Possibilities/ Probabilities.’ Since POSH cases are civil in nature and its IC has the power of the civil court, the Evidence Act of 1872 criterion does not apply. 

In POSH cases for an IC to determine sexual harassment, it has to form its belief based on either of the following: 

Following the elements of this principle, that needs to be satisfied:  

• There is more likely for the event(s) to happen than not to happen. (Probability of one event being more true than the other, i.e. more than 50 %)
• Should satisfy: prudent man test. (IC fact finding and coming to conclusion from the perspective of a reasonable man)
• Principles of Natural Justice has to be followed

Steps for applying this principle:

• Look into facts 
• Repair the chances
• Weigh the chances that tend to intermingle
• First: Weeding out the impossible 
• Second: Weeding out the improbable
• Final decision

Case: Medha Kotwal Lele & Ors. V. Union of India and Others, 2012

“The standard of proof is preponderance of probability and there is no need to establish the charge of sexual harassment beyond reasonable doubt as in a criminal proceeding. All that is necessary is that the inquiry must be conducted in a fair and transparent manner and in due compliance of the principles of natural justice, after giving full opportunity to the delinquent to defend his case.”

Follow us on LinkedIn for more articles on POSH. 

The post Preponderance of Possibilities first appeared on Metis POSH Consulting Service LLP.

Facts of the Case
In this case, a complaint of sexual harassment was filed by a female employee against the respondent. The complaint was initially submitted to the Inspector General (IG) and subsequently forwarded to several authorities, including the DG SSB, New Delhi, Dy. IG, SSB, SHQ, Tezpur, and the Chairperson of the National Women Rights Commission, New Delhi. The first complaint was filed on August 30, 201. On September 18 2012, the complainant also submitted a second complaint containing additional allegations against the respondent.

Two initial inquiries, a fact-finding inquiry and a Frontier Complaints Committee inquiry, failed to substantiate the allegations. Subsequently, the Ministry of Home Affairs constituted the Central Complaints Committee to investigate the matter. The Central Complaints Committee had to be constituted in view of Clause 9 of the 2006 Standing Order. Clause 9 of the 2006 Standing Order envisages two levels of complaints committee; (i) a Frontier Complaints Committee for the “combatised and in-field officers” (ii) a Central Complaints Committee for the “non-combatised officers”. Since at the time of lodging of the complaint, the respondent was serving as a non-combatised officer, the Central Complaints Committee was formed. While the Central Complaints Committee’s Inquiry was still pending, the Ministry of Home Affairs annulled the Frontier Level Complaints Committee’s Inquiry Report on the ground that the Chairperson of the said Frontier Level Complaints Committee was of an equivalent rank as that of the respondent.

The Central Complaints Committee found the respondent guilty of sexual harassment.
The respondent argued that the allegations were false and claimed that they were made because he had rejected the transfer application of the complainant. As a result, he approached the Central Administrative Tribunal (CAT) seeking the cancellation of the Central Complaints Committee’s inquiry. However, CAT refrained from expressing an opinion on the matter, as the disciplinary proceedings were still pending.

The case then moved to the High Court, which ruled that the Central Complaints Committee had overstepped its jurisdiction by considering the second complaint and had taken on a prosecutorial role during the inquiry. The High Court stated that the jurisdiction of the Central Complaints Committee was limited to the first complaint filed by the complainant and it should not have considered the allegations made in the second complaint. The High Court also found that the committee’s findings were based on surmises and conjectures, characterizing the case as “No Evidence.” Against this order, the Supreme Court was approached.

Findings By The Supreme Court

1. Courts Should Not Get Swayed By Discrepancies and Hyper Technicalities
In its order, Supreme Court ultimately held that the High Court’s judgment was incorrect, and the Central Complaints Committee had not exceeded its jurisdiction by considering the second complaint. The High Court’s decision was set aside, and the order of punishment imposed by the disciplinary authority was upheld.

At the outset, the Supreme Court underlined the gravity of addressing workplace sexual harassment, emphasizing that offenders should not evade legal consequences. The court noted that failure to hold harassers accountable could be distressing for victims, particularly when the wrongdoer faced minimal penalties or remains unpunished. However, the court also recognized the challenge in verifying such allegations, stating that such allegations were easy to make but difficult to disprove. Thus, the court stated that when someone claimed false implication for ulterior motives, the court had a duty to thoroughly examine the evidence and determine the credibility of the accusations.
The Court underlined the importance of not being swayed by insignificant discrepancies or hyper-technicalities when reviewing such cases. It stressed that allegations of this nature should be considered within the broader context of the entire case. The Court also cautioned against showing undue sympathy or leniency towards the individual accused of misconduct.

Regarding the consideration of additional or second complaints, the Court highlighted that this issue is a separate matter to be evaluated based on whether it was filed promptly and not mischievously at a later stage to cause prejudice to the accused. In the specific case at hand, the Central Complaints Committee was established on August 6, 2012, and its first hearing took place on September 25, 2012. The second complaint, filed by the complainant, was submitted on September 18, 2012. This timeline indicated that the second complaint had been promptly submitted shortly after the Central Complaints Committee’s formation and before its first hearing.

The Court emphasized that the Central Complaints Committee’s authority was derived from the 2006 Standing Order, not solely from the complaint itself. Furthermore, even if it were assumed that the committee’s existence was contingent upon the complaint, Clause 10(i) of the 2006 Standing Order envisaged the possibility of filing a complaint with the committee. This indicated that a complaint could be submitted to the committee after it had been constituted. The court further held that in the context of departmental inquiries, strict and technical rules of evidence and procedure did not apply in the same manner as they would in a regular court of law, where witnesses are examined under oath. The Court emphasized that there should be no aversion to considering “hearsay evidence” as long as it had a reasonable nexus and credibility in the case at hand.

2. Role of Courts in Evaluating Validity of Disciplinary Proceedings Limited
In evaluating the validity of the disciplinary proceedings, the Supreme Court emphasized that the primary fact-finding authorities in such cases are the inquiry authority and the disciplinary authority. Therefore, the role of the court, in its power of judicial review, should not be to act as an appellate body or reevaluate the evidence or substitute its own findings for those of the fact-finding authorities. Instead, the scope of judicial review is limited to assessing the propriety of the decision-making process and the fairness of the inquiry procedure.

The Court also highlighted the limited jurisdiction of the High Court in such matters. It stated that the High Court should not function as an appellate authority or replace its own findings with those of the disciplinary authority. Interference by the High Court is only warranted under specific circumstances, added the Supreme Court– “It is no doubt true that if there is “no evidence” or the decision is “so unreasonable that no reasonable man could have ever come to it”, or the decision is “so outrageous” in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it “or that it is so absurd that one is satisfied that the decision-maker must have taken leave of his senses”, it calls for interference by a competent court of law.”

3. Impact of Procedural Violation to Be Weighed Against Overall Fairness of Inquiry
The Supreme Court then turned its attention to the question of whether the respondent was asked by the Central Complaints Committee if he pleaded guilty to the allegations presented in the second complaint. The High Court had noted that while the respondent was asked about his plea regarding the allegations in the first complaint, there was no evidence to suggest that a similar exercise had been undertaken concerning the second complaint.

The Supreme Court clarified that the obligation of the Authority to ask the accused whether they pleaded guilty or had any defense was only applicable if the accused had not admitted any of the charges in their written statement of defense or had not submitted any written statement of defense. In the case under consideration, the respondent had indeed filed a written statement of defense addressing all the allegations outlined in the ten points examined by the Committee. Furthermore, the respondent had cross-examined all the witnesses regarding these allegations.

The Court opined that in case of a mere violation of a procedural rule, no prejudice could be claimed to have been caused to the respondent even if it was assumed that he was not asked to plead guilty to the second complaint. The Supreme Court held that the High Court had overlooked the principles established by the Court and had unreasonably set aside the disciplinary authority’s punishment order. This was done without applying the “test of prejudice,” which should have been employed to assess the impact of the procedural violation on the respondent’s rights and the overall fairness of the inquiry.

Download the Case law here –  Metis-POSH-Case law-POSH UNION OF INDIA AND OTHERS vs Dilip Paul 061123 (6196 downloads )

The post Courts shouldn’t get swayed by ‘Hyper Technicalities”; Must consider broader context first appeared on Metis POSH Consulting Service LLP.

Any activity that is sexual requires consent, which is defined as explicit and voluntary agreement to participate in specific sexual activity. Consent cannot be assumed from the absence of a “no”; a clear “yes,” verbal or otherwise, is necessary. Consent to some sexual acts does not imply consent to others, nor does past consent to a given act imply present or future consent. Consent must be ongoing throughout a sexual encounter and can be revoked at any time.

Here are some standards to ensure consent is accurately identified.
1. Consent must be proactive action comprised of the following three components:
• Consent must be voluntary, meaning it is exercised under conditions of free will and thus cannot
be given when the following are present:
> Coercion or pressure
> Threat, intimidation, or fear

• Consent must be affirmative, as indicated through a “yes,” whether expressed verbally or
otherwise. Therefore, consent cannot be inferred from the following:
> Silence
> Passivity or lack of resistance
> Lack of active response

• Consent must be unambiguous. It must be clearly demonstrated through words and/or actions as
mutually understood by both individuals.

2. Consent cannot be given and/or is not valid when an individual is mentally or physically
incapacitated. This includes but is not limited to:
• Sleep
• Unconsciousness
• Intoxication due to drugs, alcohol, or other reasons

3. Consent is contemporaneous to the initiation of every sexual act and can be revoked at any time during
the course of a sexual encounter. Therefore, consent cannot be presumed by a prior or current sexual
or romantic relationship.

The usual perception is that unless a woman protested, resisted or if a woman was not modestly dressed, she was deemed to have consented. Silence, passiveness or ambiguous conduct cannot be construed as consent.

No means No. Yes means Yes and Silence means “NO”

Law also assumes absence of consent if the submission is due to force, fear, threat, fraud or exercise of authority.

Furthermore, to establish unwelcomeness or unwantedness, complainant is not required to prove that she had verbally protested or said “No” or conveyed in any other way that his behavior was unwelcome. It is sufficient for the complainant to establish that she by her conduct or body movement or body language conveyed to the perpetrator her disapproval of his advances. Moving away, not laughing, not participating, avoiding, change of topic, showing disinterest etc are some of the body language signs depicting NO consent.

Case studies – In one of the sexual harassment complaints handled by us, the aggrieved woman was called to the conference room for a knowledge transfer and was touched inappropriately. The woman being a junior executive, felt extremely scared to openly tell him that she is not liking it. When the touch became repetitive, she got visibly upset, and to avoid his advances, told him that “people were moving around, and they would see”. The man continued and she had to run away from the conference room. While conducting the inquiry, the man told the IC that there was consent as the woman never told him to stop and only said that “People are moving around, and they will see.” He assumed that she must be ok with the touch but is scared of people around and hence he continued his advances. He never realized that pulling her hand back, stepping back or running away from room was non-consent. For him, consent meant she verbally telling him “No”.

In another case of sexual harassment in an office party. The woman kept requesting a male colleague to join her for the dance. He initially refused but she was insisting that he join her at the dance floor. Her other colleagues who were around her also started forcing the man to join her since she was requesting him. The man reluctantly joined her. As the music got intense and loud, the man started enjoying the dance. After a while, the lights went dim and the music slow. The man found this as an opportunity to lay his hands on the woman. She kept resisting and throwing away his hands. The man continued groping her and she had to get away and stormed out of the dance floor. She subsequently made a compliant to the IC. During the inquiry proceedings, the man was surprised and asked for justification of the complaint as the act was done with consent. The lady argued that she never gave her consent. He said that she was the one who forced him to dance with her. The man claimed that the entire office saw her pulling his hand to the dance floor. The lady responded saying the consent was only for the dance and not for the inappropriate touch on the dance floor.

Follow us on LinkedIn for POSH updates

The post Understanding consent in the context of sexual harassment first appeared on Metis POSH Consulting Service LLP.

Download the judgement copy here Tripura HC - Shila Debnath vs National Institute of Technology (1534 downloads )

The post Tripura HC- Shila Debnath vs National Institute of Technology first appeared on Metis POSH Consulting Service LLP.

Read more here (pdf): TAMIL NADU GOVERNMENT GAZETTE (13100 downloads )

The post Amendments to the Tamil Nadu Motor Vehicles Rules first appeared on Metis POSH Consulting Service LLP.