Ashima Obhan, Partner, Obhan & Associates
Bambi Bhalla, Associate, Obhan & Associates
In the recent case of Sanjeev Mishra vs. Bank of Baroda1, the Rajasthan High Court (“Court“) has widened the scope of the term ‘workplace harassment’ to include online harassment. In this case, a complaint of sexual harassment was lodged against another employee working in a different State of the same bank. The Court held that in the present digital world, workplace for employees working in the bank and who may have worked in the same branch of the bank and later on shifted to different branches, will be treated as one work place on a digital platform regardless of the employees being situated in different branches/States. With the global shift to the work from home model owing to the on-going pandemic, more individuals and particularly women are finding themselves vulnerable to online sexual harassment. In the present case, a petition was filed by the chief management of the Bank of Baroda (“Bank“) accused of sexual harassment by a subordinate employee of the same Bank, for seeking quashing of a charge sheet issued to him by the Disciplinary Authority of the Bank (“Authority“).
The Petitioners Contentions
The petitioner in this case contended that since the petitioner and the complainant were situated in two (2) different States, the Authority did not have jurisdiction in this matter. It was contended that as per the Bank of Baroda Officer Employees’ (Discipline and Appeal) Regulations, 1976 (“Regulations“) an inquiry can only be initiated if sexual harassment is committed at the workplace. Since the petitioner and the complainant were residing in different States, a charge sheet could not have been issued to the petitioner and no inquiry could be conducted. It was also contended that the obscene messages sent by the petitioner to the complainant were after working hours and hence the inquiry could not have been conducted.
The Court’s Reasoning
The Court held that in the present digital world, ‘workplace’ for employees working in different branches of the same organization or different States shall be treated as one workplace on a digital platform. Regarding the second contention of the petitioner, the Court reasoned that even if obscene messages were sent by the petitioner after working hours, knowing fully well that the complainant is an employee of the Bank holding the position of a subordinate, it would still amount to workplace sexual harassment and prima facie would come within the meaning of misconduct under the Regulations.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”)
The POSH Act was enacted with the aim to provide protection to women against sexual harassment at the workplace and for speedy redressal of sexual harassment complaints. Section 2(n) of the POSH Act defines sexual harassment as any unwelcome act or behaviour (whether directly or by implication) namely, physical contact and advances, or demand or request for sexual favours, or making sexually coloured remarks, or showing pornography, or any unwelcome physical, verbal or non-verbal conduct of sexual nature. Section 3 of the POSH Act states that no woman shall be subjected to sexual harassment at any workplace. Section 2(o) of the POSH Act defines ‘workplace’ and includes within the definition inter alia, “any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey”. Through several judicial pronouncements, some of which are summarised herein below, it can be concluded that the courts in India have sought to give a liberal interpretation to the definition of ‘workplace’ in safeguarding women at their workplace.
The definition of “Workplace”
In a 2008 case of Saurabh Kumar Mallick vs. The Comptroller and Auditor General of India and Ors.2, the Delhi High Court emphasized on the role of technology in sexual harassment cases. In this case the court clarified that while it was becoming possible for CEO’s to run their offices from their residence, in such case if a person were to indulge in an act of sexual harassment with another employee, it would not be open for him to say that he had not committed the act at the ‘workplace’, but at his residence. The court stated that a narrow definition of ‘workplace’ cannot be accepted. The court recognized that while it may be difficult to define the term ‘workplace’ in straight jacket as the same would depend on the facts and circumstances of the case at hand, the court laid down a test to determine whether a particular place can be regarded as a ‘workplace’ by assessing the following factors:
- Proximity from the place of work;
- Control of management over such place/residence where working woman is residing; and
- Such residence has to be an extension or contiguous part of working place.
Further, in the case of Jaya Kodate vs. Rashtrasant Tukdoji Maharaj Nagpur University3, the court stated that the definition of ‘workplace’ under the POSH Act is inclusive and deliberately kept wide by the Parliament to ensure that any area where women may be subjected to sexual harassment is not left unattended for. Similarly, in the case of Ayesha Khatun vs. The State of West Bangal and Ors.4, the Calcutta High Court while analyzing the term ‘workplace’ in the background of the Vishakha guidelines, stated that ‘workplace’ cannot be given a restricted meaning and instead it should be given a broader meaning so that the guidelines can be be applied where its application is needed even beyond the compound of the ‘workplace’ for removal of any obstacle of like nature which prevents a working woman from attending her place of work. The court in this case also emphasized on the need for providing a suitable and congenial atmosphere to women at their place of work where they can continue with their service with honour and dignity.
It is pertinent to note here that last year, the Supreme Court of India in the case of Punjab and Sind Bank & Others vs. Mrs. Durgesh Kuwar5 held that sexual harassment of a woman at the workplace is an affront to her fundamental rights of equality, right to live with dignity and right to practice any profession or to carry on any occupation, trade or business. From the above judgements of the various High Courts and the Supreme Court of India, it is evident that the courts have sought to protect women at their workplace every step of the way. With the on-going pandemic and the work from home model here to stay, the trend of online meetings and digital communication has amplified enormously leading to a rise in virtual/online workplace harassment making it crucial to provide for wider protection to women.
1. S.B. Civil Writ Petition No. 150/2021
2. WP(C) No. 8649/2007
3. Writ Petition Nos. 3449, 3450 & 3451 of 2013
4. W.P. No. 905 of 2011
5. Civil Appeal No. 1809 of 2020
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