In this contemporary era, the Prevention of Sexual Harassment of Women at Workplace Act, also known as POSH Act, 2013 stands as a robust framework to safeguard employees from sexual harassment at workplace, by providing an effective redressal mechanism.
Anonymity in workplace sexual harassment remains a nuanced and complex issue. While the POSH Act does not explicitly recognizes the maintainability of anonymous complaints, the confidentiality of complainants and witnesses if often taken into account by the Internal Committee (IC) to ensure that justice is served without compromising the safety and confidentiality of those involved. This grey area underscores the delicate balance between upholding procedural transparency and protecting the identities of vulnerable individuals within the framework of the POSH Act.
Confidentiality under POSH Act
Although the POSH Act does not explicitly provides statutory provision for anonymity, it underscores the importance of confidentiality, which serves a similar protective purpose, providing a protective environment for victims of sexual harassment.
For instance, Section 16 of the POSH Act explicitly deals with 'Prohibition of publication or making known contents of complaint and inquiry proceedings', stating that the contents of the complaint; the identity and address of the aggrieved woman/victim, the respondent, and witnesses; any information relating to conciliation and inquiry proceedings; recommendations of the Internal Committee or the Local Committee, as the case may be; and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner.
For the first time in the case of P vs. A and Ors1, the Hon'ble High Court of Judicature at Bombay has found it imperative to address the issue of protecting the identities of the parties involved from both intentional and accidental disclosure during POSH proceedings. The Court emphasized that safeguarding the identities serves the interest of both sides and consequently, the court has instituted a set of comprehensive guidelines to ensure anonymity for such matters.
The order passed sets forth a working protocol for future orders, hearing, and case file management. These initial guidelines are designed to maintain the anonymity of all parties, ensuring that they are referred to only by generic titles such as "plaintiff" or "defendant". Consequently, cases shall be cited as "A vs. B" or "P vs. D", with no personal identifiable information, such as email ids, mobile or telephone numbers, addresses, etc. included.
Furthermore, the court has stressed the importance of protecting the identities of witnesses as well. The order explicitly states that witnesses name and addresses will not be recorded. To enhance security, the entire case record will be sealed and inaccessible without a specific court order.
The Court has mandated that all individuals, including media personnel, strictly adheres to these anonymity protocols. Any failure to comply with these conditions will be considered contempt of court and subject to appropriate penalties. These guidelines, while preliminary, set a significant precedent for handling sensitive information in judicial proceedings.
Consequences for breach of Confidentiality
Failing to adhere to the confidentiality requirements under the POSH Act can result in significant legal consequences. In the event that any person contravenes the provisions of Section 16, the POSH Act provides for a monetary penalty of INR 5000 as specified under Rule 12 of the POSH Rules,
What Are Anonymous Complaints? Are they Admissible under POSH Act?
The admissibility of anonymous complaints has long been a contentious topic for quite some time. The POSH Act, enacted in 2013, aims to create a safe working environment for women by addressing and redressing complaints of sexual harassment at workplace. However, the question of whether anonymous complaints can be entertained remains a subject of debate since long.
This question arises from the need to balance the rights of the complainant to protection against retaliation with the rights of the accused to a fair inquiry process adhering to the principles of natural justice that allows the accused to know the specifics of the allegations against them.
Before addressing the aforementioned issue, it is important to understand the meaning of anonymous complaints.
Anonymous complaints are grievances reported without revealing the identity of the person making the complaint (i.e., the complainant). These complaints can be made without disclosing the name, address or any identifiable information about the individual raising the concern. The primary reason for anonymity in such cases is often the fear of retaliation and the stigma associated with it. Cases of sexual harassment are highly sensitive and hence, the power dynamics and social consequences often deter victims from coming forward openly.
How to make a complaint under POSH Act?
Section 9 of the POSH Act deals with filing a complaint under POSH Act. It states that:
"any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident."
The aforementioned provision highlights the written nature of the complaint and does not provide for any clarification for dealing with anonymous complaints of sexual harassment.
With regard to admissibility of anonymous complaint, reliance must be drawn towards the judgment of the Hon'ble High Court of Gujarat in the case of Dipakkumar Dineshbhai Luhar vs. State of Gujarat on April 12, 20232 wherein a petition was filed by the accused against whom a preliminary departmental inquiry was initiated on the basis of anonymous complaint. It was submitted that the charge sheet issued is bad in law as it is based on anonymous complaint. Further, it was stated that as per the government resolution, no action can be initiated relying on anonymous complaints and therefore the initiation of the inquiry itself is contrary to resolution and therefore consequential proceedings are bad. Moreover, the petitioner relied on Section 9 of the POSH Act stating that the aggrieved woman has to make a complaint in writing before the ICC under the law. And since in the referred case, there was no such written complaint, the proceedings initiated deserves to be quashed and set aside.
The Court observed that the due procedure contemplated under the provisions of the Rules were followed and for the contention of the petitioner regarding taking cognizance of anonymous complaint, the Court held that "generally due cognizance is not to be taken on an anonymous complaint and no action is to be taken based on anonymous complaint, however there is no absolute bar." Therefore, the contention that departmental proceedings cannot be initiated based on anonymous complaint was not correct given the facts of the case and hence the petition was dismissed.
In short, anonymity serves as a double-edged sword in the realm of POSH Act as the Act itself does not explicitly address the admissibility of anonymous complaints, however, the IC established under the POSH Act, is tasked with handling complaints of sexual harassment in a manner that ensures confidentiality and impartiality.
The dilemma with anonymous complaints lies in the IC's ability to conduct a thorough investigation. Without knowing the identity of the complainant, it can be challenging for the IC to assess the credibility of the complaint, to gather additional evidence, verify claims, and ensure a fair hearing for both parties. Additionally, the accused has the right to know the charges levelled against him and the identity of the accuser, which is a fundamental principle of natural justice.
However, disregarding anonymous complaints altogether can prevent genuine victims from seeking justice. Hence, a balanced approach is to be adopted suggesting that anonymous complaints should not be dismissed outright, but subject to a preliminary assessment. If the preliminary inquiry finds some merit, the complaint can proceed with further investigation. This approach shall aid in ensuring that potential misuse is curbed while still offering a channel for genuine complaints to be addressed.
For instance, in the case of L.S. Sibu vs. Air India Limited on September 25, 20143, the Hon'ble Kerala High Court addressed a delicate question which is, in what manner the principles of natural justice have to be secured in the enquiry conducted in a complaint related to sexual harassment.
The Court remarked that "In sexual harassment complaint, sometimes the complainant may not have courage to depose all that has happened to her at the workplace. There may be an atmosphere restraining free expression of victim's grievance before the Committee. The privacy and secrecy of such victims also required to be protected. It is to be noted that verbal cross examination is not the sole criteria to controvert or contradict any statement given by the aggrieved before any authority. Primarily, in a sexual harassment complaint, the committee has to verify and analyze the capability of the aggrieved to depose before them fearlessly without any intimidation. If the Committee is of the view that the aggrieved is a feeble and cannot withstand any cross examination, the Committee can adopt such other measures to ensure that the witnesses' statement is contradicted or corrected by the delinquent in other manner. The fair opportunity, therefore, has to be understood in the context of atmosphere of free expression of grievance. If the Committee is of the view that the witness or complainant can freely depose without any fear, certainly, the delinquent can be permitted to have verbal cross-examination of such witnesses. In cases, where the Committee is of the view that the complainant is not in a position to express freely, the Committee can adopt such other method permitting the delinquent to contradict and correct either by providing statement to the delinquent and soliciting his objections to such statement."
Thus, the Act does not explicitly prohibit or endorse anonymous complaints thereby remaining a grey area. While they can play a crucial role in encouraging victims to come forward, they can also present significant challenges in terms of investigation and due process. Organisations must strike a balance between receptive to anonymous complaint and ensuring that they are handled in a manner that is fair, thorough and in compliance with legal requirements.
Does non-disclosure of witness identities be construed as violation of principles of natural justice?
After addressing the admissibility of anonymous complaints, the next pertinent issue under scrutiny is the anonymity of witnesses. The landmark case of P vs. A and Ors. has underscored the significance of safeguarding not only the identity of complainants but also that of witnesses.
However, a contentious debate arises regarding whether non-disclosure of witness identities constitutes a violation of principles of natural justice. This topic has sparked divergent judicial opinions. Some argue that fairness of inquiry demands the accused having the opportunity to cross examine witnesses directly while conversely, opposing view contends that protecting witness identities, thereby allowing cross-examination through questionnaires, upholds fairness and impartiality in investigations. This ongoing legal discourse highlights the delicate balance between protecting witness anonymity and ensuring procedural integrity in judicial proceedings.
The issue of not giving an accused an opportunity for verbal cross examination of witnesses was brought in the case of Prof. Bidyug Chakraborty vs Delhi University & Ors. on May 29, 20094 before the Hon'ble Delhi High Court wherein the court was of the opinion that mere permission to give written questions to the committee for cross examination of the complainant does not fulfil the legal requirement on the part of the Inquiring Authority, to give opportunity to the delinquent to cross examine her.
"Cross examination by giving written questions to the inquiring authority can never be as effective as verbal cross examination and cannot be its proper substitute. While putting questions to a witness the examiner does not know what answer the witness would give to the questions put to him/her. It is therefore, not possible for him to formulate the next question without taking into consideration the answer given by the witness. The answer given by the witness to one question may led to further questions from the examiner on the same line, in order to elicit truth from the witness and to impeach his/her trustworthiness..... It was imperative on the part of the Inquiring Authority to give opportunity to the petitioner for her cross examination not only of the complainant but also of the other witnesses examined by it. Denial of opportunity to cross examine the complainant and other witnesses examined by the committee constitutes gross violation of principles of natural justice."
The above decision was however, challenged before the Hon'ble Supreme Court which led to the passing of one of the significant precedent in this regard, wherein the Apex Court in the case of Delhi University vs. Bidyug Chakraborty on January 12, 20105 was of the view that the respondents are entitled to a hearing and to cross-examine the witnesses. However, considering that it was a case of sexual harassment, the court directed that "the identity of the witnesses need not be revealed to the respondent or his counsel and for this purpose the respondent would be entitled to submit the questionnaire which will be put to the witnesses for their answers in writing."
Referring to the judgment cited by the Apex Court in Bidyug Chakraborty's case and the Kerala High Court in L.S. Sibu, the Hon'ble Delhi High Court in the case of Ashok Kumar Singh vs. University of Delhi and Ors on August 18, 20176, directed the IC to proceed with the inquiry by permitting the appellant to cross-examine the witnesses of the complainant through a questionnaire which would be submitted to the IC at the time when the witnesses are produced for their cross-examination. Further, the court directed that the appellant and the complainant would not be present at the time when the cross-examination of the witnesses of the complainant is being recorded."
Further, reliance must be placed towards the ruling passed by the Kerala High Court in the case of Managing Director, HDFC vs. Suresh Babu (January 10, 2022) wherein the Court did not agree with the claim that findings were vitiated because the witnesses were not cross-examined in front of the respondent. However, the court held that the IC ought to have given the copy of the statements of the complainants and the witnesses to the accused and he should have been given an opportunity to controvert the correctness thereof.
Recommended Procedure for Cross Examination in Saksham Report
The Saksham Report, formally known as the "Saksham: Measures for Ensuring the Safety of Women and Programs for Gender Sensitization on Campuses," was published by the University Grants Commission (UGC) in the year 2013, providing comprehensive guidelines aimed at ensuring the safety and security of women in higher education institutions across India. Appendix 12 of the Report specifies "Recommended Procedure for Cross Examination".
The defining points of this procedure is that neither the complainant nor her witnesses shall, if they so wish, be subjected to a face-to-face encounter with the charged person(s) whether during examination or cross-examination, and that cross-examination may be done through a cross-examination or a questionnaire. This entails that witnesses for the complainant need not be examined in the presence of the charged person.
To be concise, the procedure for cross-examination detailed in this Saksham Report, allows the Complaints Committee to protect the identities of the complainant's witnesses. In such cases, the Committee ensures the anonymity of these witnesses by permitting cross-examination only through written questionnaire.
Thus, cross examination is a fundamental right of the respondent in an inquiry process, which is rooted in the principle of audi alteram partem, which means "hear the other side". This ensures that both parties in a dispute have a fair opportunity to present their case and challenge the evidence presented against them. However, there are circumstances wherein the respondent may waive this right or choose not to contest the veracity of the evidence and testimony gathered without their direct involvement. In such situations, the respondent cannot later claim that they were denied the opportunity for cross-examination, especially if they did not request it and did not dispute the accuracy of the statements.
This issue was notably addressed in the case of K.L. Tripathi vs. State Bank of India wherein the appellant challenged the enquiry resulting in his dismissal before the Hon'ble Supreme Court of India, on the ground that the principles of natural justice had been violated as he was not allowed to cross-examine the witnesses, and that the evidence against him was not recorded in his presence7.
The Court rightly reiterated that the rules of natural justice are flexible and cannot be put on any rigid formula. It held that in order to sustain a complaint of violation of principles of natural justice on the ground of absence of opportunity of cross-examination, it must be established that some prejudice has been caused to the appellant by the procedure followed.
"When on the question of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order, by absence of any formal opportunity of cross-examination per se does not invalidate or vitiate the decision arrived at fairly.... The party who does not want to controvert the veracity of the evidence from or testimony gathered behind his back cannot expect to succeed in any subsequent demand that there was no opportunity of cross-examination especially when it was not asked for and there was no dispute about the veracity of the statements."
Conclusion
To summarize, the principles of natural justice form the cornerstone of the POSH Act. Unlike a court of law, the ICC is not constrained by rigid technical procedures but is instead tasked with ensuring natural justice for all parties involved, which includes the right to a fair hearing and the rule against bias. By focusing on these fundamental principles, the IC aims to protect the rights of both the complainant and the accused, fostering a safe and respectful workplace environment.
In the case of Dr. R.K. Pachauri vs. Union of India and others, the Industrial Tribunal, New Delhi, reiterated the importance of following the principles of natural justice, stating:
"The Act of 2013 states that the ICC is not bound by technical procedures but is only to ensure natural justice to parties and thus IC is free to devise its procedure depending on peculiar circumstances of the case before it while ensuing natural justice."
Given the sensitive nature of sexual harassment cases, the ICC's ability to adapt its procedures is vital. This adaptability aids in addressing the unique aspects of each case, ensuring a thorough and empathetic approach to fact-finding and resolution. The ICC's recommendations, grounded in natural justice, contribute to a more effective enforcement of the POSH Act, ultimately fostering a culture of dignity and respect in the workplaces.
Footnotes
2. https://indiankanoon.org/doc/56501872/
3. https://indiankanoon.org/doc/121304718/
4. https://indiankanoon.org/doc/6499449/
5. https://indiankanoon.org/doc/41262792/
6. https://indiankanoon.org/doc/127629655/
7. https://indiankanoon.org/doc/447308/
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