Today I want to let you know how much I love you. I have an allegation by two of the employees f sexual harassment and trust me I did not do anything. I know the world will understand it but you and our families should trust me. The allegations are baseless. But the entire Genpact will know about it, hence I do not have the courage to face anyone.
I want you to be strong and live life with whole respect as your husband has not done anything.
am going as everyone will look at me with that eye even if I come clean.”
In an article dated 20th December, 2018, India Today quoted the above suicide note of Mr. Swaroop Raj who was working as Assistant VP at a global professional service firm in New Delhi. It also reported that he committed suicide on 18th December 2018 after he was accused of sexual harassment by two of the employees of his organisation. His body was discovered by his wife Kirti at his Noida house.
This incident was reported by several newspapers across the country. A similar incident was reported by Legally India as well on 28th October, 2018, as per which a student of NLU Delhi tried to commit suicide, after the student (accused) complained that sexual harassment inquiry by the school’s internal complaint committee against him was procedurally defective. In our view, these incidents have several learnings for organizations and their internal committee (“IC”) members.
The last line of Swaroop’s suicide note quoted above states that “…am going as everyone will look at me with that eye even if I come clean.” Judgment by colleagues, friends, family and society at large and the feeling of“log kya kahenge” is a common concern that several individuals have, whether it is a complainant or (as in this case) a respondent. There is a constant fear involved – of being judged by others – which often leads to severe trauma and mental pressure on parties. In this context, it is important to look at Section 16 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act and Rules, 2013 (“the Law”) which states that “…the contents of the complaint made under section 9, the identity and addresses of the aggrieved woman, 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as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner…”This Section clearly states that details regarding neither the complainant nor the respondent have to be made public. The proviso to this Section states that once the inquiry is done, “…information may be disseminated regarding the justice secured to any victim of sexual harassment…” The Section, therefore, is clear that any information that may be disseminated is post the inquiry has completed and not during or before the inquiry.
Clause 19.5 of Parliamentary Standing Committee on Human Resource Development, 239th Report on Protection of Women against Sexual Harassment at Workplace Bill, 2010 (presented to the Rajya Sabha on 8th December, 2011 and laid on the table of Lok Sabha on 8th December, 2011) provides some insight into the Ministry’s intention and justification for having this clause and states that the intention was “…to protect the confidentiality of complaint regardless of what was contained in the RTI Act. The idea was to give the complainant confidence to take recourse to the mechanism provided without fear and stigma. Clause 19.7 further states that the intention of this provision “…is to protect the aggrieved woman from further harassment of any kind or public ridicule.” However, it must be noted that when a complaint is pending, when IC has not finished inquiry, but public has already decided that respondent is guilty – a similar fear could also engulf respondent and a similar public ridicule could also be experienced by a respondent. Hence, in this context, it is extremely important that when a complaint is filed and inquiry is pending, the following be done:
- Complainants should be encouraged to file complaints with the IC directly (so that IC could follow the law and take the complaint to its logical conclusion) instead of the complaint being filed with different authorities (which may lead to the involvement of several people and increase the chances of breach of confidentiality)
- Respondents should be informed that the minute the complaint is filed, they should not be discussing this with friends and colleagues in an attempt to create / preserve witnesses
- IC members should reiterate to the parties that complaint shall be dealt with in a confidential manner so that both parties are reassured that there will not be public ridicule
- IC members should take preventive measures to ensure that details of a complaint are not made known to public, press or media in any manner
- It should carefully assess the office environment to ensure there details regarding a complaint are not being discussed and there is no office gossip
- IC members should also ensure that any witnesses called by them are informed about their duty to maintain confidentiality and be informed that strict action will be taken against them if they breach confidentiality
- Over and above this, IC members must be stern and recommend strict action against those who breach confidentiality to set an example that such irresponsible behaviour shall not be tolerated
This for sure brings the IC under a more responsible position to handle an inquiry with at most confidentiality and requires it to adopt several measures to ensure that confidentiality is not breached. Further, IC needs to also sensitise itself towards the trauma faced by employees while dealing with an inquiry for sexual harassment. A serious allegation of sexual harassment which has still not been proved needs to be handled with a certain amount care and concern as it may directly impact the image of the respondent and the complainant. Further, in few scenarios, the respondent may not even be held guilty at the end of the inquiry. Organizations must, therefore, ensure that appropriate training is conducted for their IC members so that they are able to handle complaints sensitively and confidentially and learn the methods for ensuring confidentiality. Awareness programs conducted by organizations should also specifically discuss the clause on confidentiality and explain to the participants the importance of keeping details related to a complaint strictly confidential and the serious impact it can cause on the life of others if confidentiality is breached. These could go a long way in ensuring that parties feel protected and there is no fear, stigma or public ridicule involved.
On 22nd December 2018, Indian Express reported that “the family of a senior Genpact executive who committed suicide has said that he took the extreme step because he was suspended by the company over allegations of sexual harassment without being given a chance to present “his side”. It also reported that Pranava Srivastava, Swaroop Raj’s, brother said, “…More than just the allegation, it was the sudden suspension, without hearing his side, which triggered him to take this extreme step.” Indian Express, in the same article, also reported the company’s response which said that “Genpact’s priority is to protect the dignity and privacy of everyone impacted” and “There was a serious complaint of sexual harassment made by two female employees against the deceased. The complaint was being duly investigated by the internal complaints committee… To have a fair inquiry, he was placed under temporary suspension pending closure of the inquiry. This is in accordance with the Prevention of Sexual Harassment at Workplace Act (POSH)…”
It is a commonly believed that suspension is an option provided under Law, however, as we discussed in our earlier article as well, from a plain reading of the Law, it appears that while leave of 3 months has been prescribed for the aggrieved woman, leave and / or suspension during pendency of inquiry is not categorically provided for the respondent. Hence, the question that arises is, as per provisions of Law, can the respondent be suspended / asked to go on leave during pendency of inquiry? In the case of Ms. Pi and Ors. vs. Jawaharlal Nehru University and Ors., decided by the High Court of Delhi on 29 May, 2018, the Court instructed the committee (ICC in this case) to “examine the material available on record” and, thereafter, reach a prima facie finding as to whether respondent’s conduct is such that it merits “his immediate suspension and / or removal from campus” and if a case of misconduct is made out, make suitable recommendations to the VC. Hence, what it instructed IC is not to suspend the respondent during pendency of inquiry but examine the material and reach a finding and then make appropriate recommendations. You can read more details on this case and suspension here. Hence, employers should be careful before they suspend respondent without any cause.
As reported by the Quint on 26th December, 2018, Swaroop’s wife Kirti said, he was not given a chance to present his case and was asked to abruptly leave without the organization gathering any proof against him. What does being given a chance entail? It is extremely important to note that IC must, as per Law, follow principles of natural justice. Hence, it must give both parties equal opportunity to present their case. The Honourable Supreme Court in Dev Dutt vs Union of India ((2008) 8 SCC 725), observed that “…The rules of natural justice are not codified nor are they unvarying in all situations, rather they are flexible. They may, however be summarised in one word: fairness…” Most ICs are still unaware of the legal requirement for cross-examination and its importance. Also, in Gaurav Jain vs. Hindustan Latex Family Planning Promotion Trust and Ors. (2015 SCC Online Del 11026), the Delhi High Court pointed out that “strict rules of evidence are not required to be followed in inquiry proceedings and that the IC can adopt its own procedure in conformity with the principles of natural justice and especially in a case of sexual harassment.” Given that the law is nascent, developing, and unclear and there are no clear road maps on how to conduct inquiries, employers must ensure that their IC is equipped to deal with procedures in accordance with law, is unbiased and balanced and ensure that principals of natural justice are followed so that neither party is left wanting a fair opportunity. This could go a long way in ensuring that both parties feel that a fair opportunity has been given to them.
– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner POSH at Work