“Hi Kriti,
Today, I want to let you know how much I love you. I have been accused by two of the employees of 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 full respect, as your husband has not done anything.
With Love,
Swaroop
am going, as everyone will look at me with that eye even if I come clean.”
In an article dated December 20, 2018, India Today quoted the above suicide note of Mr. Swaroop Raj, who was working as an assistant VP at a global professional services firm in New Delhi. It was also reported that he committed suicide on December 18, 2018, after being 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 October 28, 2018, as per which a student of NLU Delhi tried to commit suicide after the student (accused) complained that a 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 “I 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, makes it clear that any information that may be disseminated is post-inquiry and not during or before the inquiry.
Clause 19.5 of the 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 December 8, 2011 and laid on the table of the Lok Sabha on December 8, 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 complaints 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 or 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 the IC has not finished the inquiry but the public has already decided that the respondent is guilty, a similar fear could also engulf the respondent, and a similar public ridicule could also be experienced by the respondent. Hence, in this context, it is extremely important that when a complaint is filed and an 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 it with friends and colleagues in an attempt to create or 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 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 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 behavior shall not be tolerated
This for sure puts the IC in a more responsible position to handle an inquiry with the utmost confidentiality and requires it to adopt several measures to ensure that confidentiality is not breached. Further, IC needs to also sensitise itself to the trauma faced by employees while dealing with an inquiry for sexual harassment. A serious allegation of sexual harassment that has still not been proved needs to be handled with a certain amount of care and concern as it may directly impact the image of the respondent and the complainant. Further, in a 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 lives of others if confidentiality is breached. These could go a long way in ensuring that parties feel protected and that there is no fear, stigma, or public ridicule involved.
On December 22, 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 was also reported that Pranava Srivastava, Swaroop Raj’s brother, said, “More than just the allegation, it was the sudden suspension, without hearing his side, that 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 the closure of the inquiry. This is in accordance with the Prevention of Sexual Harassment at Workplace Act (POSH).
It is commonly believed that suspension is an option provided under the 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 the pendency of inquiry is not categorically provided for the respondent. Hence, the question that arises is, as per the provisions of the law, can the respondent be suspended or asked to go on leave during the pendency of the inquiry? In the case of Ms. Pi and Ors. vs. Jawaharlal Nehru University and Ors., decided by the High Court of Delhi on May 29, 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 the 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 was not to suspend the respondent during the pendency of inquiry but to examine the material, 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 suspending respondents without cause.
As reported by the Quint on December 26, 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 an 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 the law, is unbiased and balanced, and ensures that the principles 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.