The Hon’ble Bombay High Court held that that Petitioner’s comment “you must be using JCB to manage your hair” did not qualify as sexual harassment under the POSH Act.
Case Description
Vinod Narayan Kachave v. The Presiding Officer (ICC) and Anr
Bombay High Court
Case Type: Writ Petition
Case No.: Writ Petition No. 17230 of 2024
Date of Order: 18.03.2025
Bench: Sandeep V. Marne, J.
Facts
- The complaint of sexual harassment filed against the Petitioner contained three allegations:
- Petitioner commented on Complainant’s hair and said, “you must be using JCB to manage your hair”. Then, he started singing a song related to her hair.
- Petitioner passed a vulgar comment about a male employee’s private parts. He asked the employee if he had a girlfriend and when the employee denied, he said, “Kyun tera machine kharab hai?”
- Complainant raised an allegation against her Reporting Manager and said that she checks her out and discusses her attire with male colleagues.
- Internal Committee (“IC”) conducted an inquiry and based on witnesses’ statements, held the Petitioner to be guilty under the POSH Act.
- Petitioner filed an appeal under Section 18 of the POSH Act before Industrial Court. However, the Court dismissed his appeal. Aggrieved, he filed the current petition.
Issue
- Whether the statement “you must be using JCB to manage your hair” qualifies as a sexually coloured remark and therefore is punishable as sexual harassment under the POSH Act?
- Whether IC erred in its assessment of the allegation and passed its impugned recommendation?
- Whether the Industrial Tribunal erred in its decision to dismiss?
Laws Involved
- Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal), Act 2013 (“POSH Act”)
Court’s Analysis
Note: Despite service of notice, the counsel for Respondents did not appear.
With Regards to Allegations
- The Court said that the Petitioner made the comment on 11th June 2022 and the Petitioner and Complainant had a conversation after the incident where he praised her performance, and she expressed her gratitude for his efforts. Court said that she herself did not perceive it as sexual harassment when this comment was made and Petitioner was motivating the Complainant. The comment passed by the Petitioner about Complainant’s hair, it said, does not appear to be made with the intention to harass her sexually.
- Regarding second allegation, it said that Petitioner made this statement about another male employee and there is no indication that Complainant was present at the time of the incident. Therefore, it is difficult to believe that such conduct made her feel sexually harassed at a personal level.
- The third allegation does not concern the Petitioner at all it said.
- It is noted that the Complainant filed the complaint after she resigned. Based on material on record, it appears that Petitioner and Complainant shared cordial relationship before her resignation.
With Regards to IC’s Failure
- In its findings, IC did not discuss each article of charge with its related evidence that appeared on record.
- IC’s recommendations appear to be vague. It only mentioned, “all serious allegations were confirmed by multiple witnesses that were interviewed by the committee”.
- IC failed to consider whether the allegations were allegations of sexual harassment to begin with. Further, even though the third allegation did not concern the Petitioner, IC still incorporated it into its report.
With Regards to Industrial Court’s Faults
- It failed to consider the nature and gravity of allegations levelled against the Petitioner.
- It ignored the fact that even if allegations were proved, they did not constitute sexual harassment under the POSH Act.
Conclusion
The Hon’ble Court held that the allegations raised against the Petitioner were neither proven nor had elements that constitute sexual harassment under POSH Act. Further, it held that IC’s findings were flawed, and its recommendations were vague. Furthermore, it held Industrial Court’s decision to be perverse. Thus, it allowed the petition.
OUR OPINION
Unfortunately, we are unable to access the Industrial Court order or the IC’s report due to two primary reasons: first, the Industrial Court order has not been published on the lower court’s website; and second, the IC report is confidential and thus not available for public disclosure. Consequently, our assessment is based solely on the High Court’s findings as presented in the Hon’ble Bombay High Court’s order, within the scope permitted by this document.
Our opinion, based on an analysis of the Hon’ble Bombay High Court’s order, is outlined below:
- The Court noted, “Considering the nature of comment allegedly made by the Petitioner towards the complainant it becomes difficult to believe that the same was made with an intent of causing any sexual harassment to the complainant…” It is important to recognize that perceptions of sexual harassment can vary, and in cases involving such allegations, the impact on the complainant is paramount. This principle has been underscored in numerous precedents, including the case of Dr. Punita K. Sodhi v. Union of India (2010) by the Hon’ble Delhi High Court. Shockingly, the issue of impact has been entirely disregarded and remains unaddressed in the aforementioned order.
- With regard to this particular case, the interpretation of the allegations appears to be contentious. Regarding one specific allegation, the Court observed, “However, the WhatsApp conversation between the Petitioner and the complainant post 11 June 2022 indicates that the Petitioner was actually encouraging the complainant in her work performance, and the complainant expressed gratitude for the Petitioner’s efforts…” The fact that the Respondent (Petitioner before the High Court) assisted the Complainant in her work does not justify subsequently making derogatory or sexual comments under the assumption that they would be well-received. This assumption by the Court is equally surprising.
- Concerning Allegation No. 2, the Court has determined that it does not constitute sexual harassment. However, even if assumed to be so, making sexual remarks about a male employee’s private parts in the presence of other females, albeit in the complainant’s absence, is highly unprofessional conduct in the workplace. The Court has unfortunately omitted any commentary on the basic professional decorum that workplaces must uphold.
This order goes against the fundamental principles of the POSH Act, which need to be interpreted not merely in letter but also in spirit, is quite frankly disappointing.
Authored by Adv. Divya R, Chief Research & Development Officer and Ayush Bardhan, Legal Associate