Madras HC : Workplace Misunderstanding Not the Same as Sexual Harassment

Whenever the conversation of POSH and its legal guidelines is initiated, one of the most confusing and debatable aspect is the distinction of ‘what exactly is and could be construed as workplace sexual harassment’. In one of the recent judgments, the Madras High Court provided insights into this. 

Before one goes into the nuances of the legal details, here is a quick summary for all of us to take note of: 

1) That in Section 3 of the Act, every employer is duty bound to ensure no woman in the workplace is subjected to sexual harassment 

2) That the definition of “sexual harassment” under the Act is wide but not exhaustive and;

3) That for an act to be considered as sexual harassment, it should have sexual undertones and not all incidents of misconduct can be investigated by the IC.

In the case of Mary Rajasekaran v. University of Madras, the Court drew a distinction between workplace misconduct and sexual harassment at the workplace and held that “every misunderstanding cannot be construed to be sexual harassment.” 

The Petitioner was appointed as non-teaching staff at Loyola Development Office and Alumni Association and the Respondent was the Director of the Alumni Association. The Petitioner had raised concerns about misappropriation of funds and other misconduct by the Respondent, pursuant to which the College authorities had curtailed the powers of the Respondent. In addition, the Petitioner contended that she had also reported an alleged incident of sexual harassment against the Respondent and without initiating an enquiry under the POSH Act, the Respondent was transferred to another college. The services of the Petitioner were terminated and no enquiry was conducted against the Respondent under the POSH Act. 

The Tamil Nadu State Commission for Women took suo moto cognizance of the allegations made by the Petitioner against the Respondent that were pending before the High Court and passed an order directing the College to pay back wages to the Petitioner and compensation as prayed for; for mental agony and trauma. The College filed a writ petition against the order of the Tamil Nadu Women’s Commission and contended that the order was passed unilaterally without jurisdiction or holding an enquiry by the Chairperson of the Commission.

It was the contention of the College that no complaint of an incident of sexual harassment was raised by the Petitioner with the College authorities and the same was added as an afterthought one and a half year later. There was no record of an official complaint filed with the authorities submitted by the Petitioner. 

The Court held that there were was no mention of the alleged sexual harassment in the communication made to the college authorities but rather with respect to misappropriation of funds and misconduct on behalf of the Respondent. The allegation was made in passing in a letter to the Commissioner of Police, after a considerable amount of time had passed and no specifics of the incidents were mentioned. The Court stated:

“Therefore, without showing any instances leading to sexual harassment merely on the basis of some misunderstandings in the work place between superior and thereafter she was changed to some other post in a consolidate pay, every such instance cannot be termed as sexual harassment”.

Therefore, the writ petition filed by the Petitioner was dismissed. 

The Court also held that the Tamil Nadu State Commission for Women passed an order without proper inquiry and collecting evidence before passing such an order. The Court held that:

“The power of the Commission is only to refer the matter to the concerned authority including the police to take appropriate action as per law, if any prima facie case is made out. Otherwise, the powers of the Commissioner is only in the nature of recommendations. Commission cannot direct the implementation of the orders to implement the orders passed by it.”

Additionally, when a matter is pending before a court, the Commission cannot take suo moto cognizance of the same. Based on these circumstances, the Court ordered the order of the Commission to be set aside. 

Written by: Rutuja Shinde

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