Madras High Court: Serious offences under POSH Act cannot be barred by limitation

In the recent case of R Mohanakrishnan v Deputy Inspector General of Police, the Madras High Court (“Madras HC”) observed that serious allegations such as continuous molestation and harassment are continuing misconduct and that 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. Relying on precedents laid down by the Supreme Court of India (“Supreme Court”), Madras HC further observed that in assessing periods of limitation under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”), courts should not get swayed by discrepancies and hyper-technicalities, and the overall fairness of the enquiry should be considered regarding any procedural violation which is complained of, and the purpose of limitation in Section 9 of the POSH Act has to be understood in this context.

R Mohanakrishnan (“Petitioner”) filed a writ petition before the Madras HC challenging the enquiry report dated March 6, 2023 submitted by the Internal Committee (“IC”), which inter alia recommended that in respect of every incident of sexual harassment committed by him, disciplinary action should be taken. The IC also recommended that the petitioner be continued under suspension till the completion of departmental proceedings.

The petitioner argued that the alleged incidents took place in 2018 – 2019, while the complainant sought an enquiry under POSH Act in 2022 and hence, the proceedings were “hopelessly barred by limitation." He contended that the enquiry was vitiated because the complaint was filed four years after the alleged incidences of sexual harassment, and not within three months as prescribed under the POSH Act. He further argued that under the POSH Act, this timeline could only be extended further by another period of three months by the IC. The petitioner argued that proceedings in the matter were not held in accordance with law, and he was not afforded a fair and proper hearing. The Tamil Nadu government contested the petitioner’s argument and noted that the complainant did not approach the IC but lodged her grievance with the Superintendent of Police, Nilgiris District, who then referred the matter to the IC on merits. The State argued that the three months deadline would not apply in this case since the complaint was a reference made by the employer.

The Madras HC was apprised of the first information report lodged at the All Women Police Station in Ooty. The State argued that the complainant did not lodge the complaint earlier due to fear, and that while the IC did not let the petitioner cross-examine the complainant on account of the “frailty of the victim”, his questions were put across to the complainant and other witnesses, whose responses were duly communicated to the petitioner. Therefore, the State maintained, that there was no non-compliance of the law as far as the procedure is concerned.

Madras HC deliberated on 2 (two) issues:

(1) Whether or not, the impugned enquiry report is liable to be quashed, as the complaint is beyond six months and hence, violative of Section 9 of the POSH Act?

(2) Whether or not, the impugned report is liable to be quashed for violation of principles of natural justice?

As a prelude to its judgment, the Madras HC acknowledged that sexual harassment encompasses a wide range of behaviours and remains a pervasive and hidden social problem. It noted that particularly in the Indian context, victims fear themselves to be blamed for harassment, and such secondary victimization is not only in the hands of the employer or the larger society, but also feared within the immediate society and family.

In addressing the first issue, Madras HC relied on the Union of India and Ors. Vs. Mudrika Singh and noted that courts should “uphold the spirit of the right against sexual harassment which is vested in all persons as part of their right to life and right to dignity under Article 21 of the Constitution of India.” It observed that the Supreme Court has repeatedly cautioned courts to be mindful of power dynamics that are mired in sexual harassment at workplace, and the several considerations and deterrents that an aggrieved subordinate of sexual harassment has to face when they consider reporting the sexual misconduct of their superior. It held that the timelines for furnishing copy of the complaint, completion of enquiry and taking further action are all meant to “expedite prompt action and are not periods of limitation entitling the delinquent employee to question the proceedings itself” and based on this, rejected the petitioner’s argument that the complaint is barred by limitation and held that it is not violative of Section 9 of the POSH Act.

In addressing the second issue, placing reliance in the Supreme Court’s observations in Aureliano Fernandes vs. State of Goa and Ors, the Madras HC observed that the IC was right in protecting the complainant from facing the petitioner directly, thereby avoiding exposing the victim once again before the delinquent petitioner. However, even in a case where sensitivity requires that the victim not be exposed before the perpetrator, the right to cross-examination is still “a valuable facet to ensure fairness and impartiality in the enquiry and the principles of natural justice.” To that extent, Madras HC held that the petitioner is bound to succeed and remitted the matter back to the IC from the stage in which the enquiry was to be continued. The High Court held that the impugned enquiry report would stand “partially vitiated” for the flaw of not providing the petitioner an opportunity to cross-examine the witnesses.

The directions of the Madras HC in the current case re-affirms the larger objective behind the POSH Act, that the regulations are not just meant for remedial action, but also to ensure that women do not feel victimised and grievances raised should not be sidelined on grounds of hyper-technicalities. Interestingly, while discussing the significance of procedural compliances, the Madars HC cited several landmark decisions including Medha Kotwal Lele and Ors. Vs. Union of India and Ors, Aureliano Fernandes case and Mudrika Singh case, and ultimately concluded that in deliberating matters of sexual harassment, courts should not get swayed by discrepancies and hyper-technicalities. The overall fairness of the enquiry should be considered regarding any procedural violation which has been complained. The purpose of limitation in Section 9 of the POSH Act has to be understood in this context.

Needless to say, in addition to upholding that serious grievances need not be barred by limitation under the POSH Act, the Madras HC reiterated principles laid down by several courts including the Supreme Court on upholding principles of natural justice in conducting enquiries under the POSH Act. Very recently, in the case of Vineeth V.V. v. Kerala State Electricity Board and Ors, the Kerala High Court (“Kerala HC”) had made a similar observation, while quashing an inquiry report on grounds that it was issued in violation of principles of natural justice and also against Rule 7 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“POSH Rules”), and while directing constitution of a new IC in accordance with the POSH Act. Kerala High Court had held that the entire proceedings should be completed strictly in accordance with POSH Act and POSH Rules, after providing the petitioner with an opportunity of hearing.

Given these recent and crucial judicial deliberations on the POSH Act and POSH Rules, from an organisational perspective, it becomes germane for organisational heads and management including the designated IC members to understand and more importantly, implement prescriptions under the POSH Act to prevent scenarios where proceedings could be challenged or vitiated on grounds of procedural defects, or where lack of due process (including principles of natural justice) is observed. Aside from employee awareness, management and ICs should be sufficiently trained to understand the likelihood of nuances that may arise out of procedural deviations. As part of mandated workshops for IC members, adequate knowledge training on the above aspects becomes relevant, and is advisable to consider.

About the authors: Gerald Manoharan and Sonakshi Das are Partners at J Sagar Associates

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