India: Participation of the accused in the performance appraisal of the complainant vitiates the inquiry process under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

Authors: Avik Biswas, Ivana Chatterjee, Devika Sreekumar

In the case of Anjali Kumari v. Yamuna Kumar Chaubey, DIR(Tech) NHPC & Ors.[1], a contempt petition was filed before the Calcutta High Court, challenging the performance appraisal that was prepared on behalf of Ms. Anjali Kumari (“Petitioner”) by Mr. Yamuna Kumar Chaubey (“Respondent”), while being employed at the National Hydroelectric Power Corporation Limited (“NHPC”). The Petitioner had earlier raised an allegation of sexual harassment against the Respondent, following which the High Court had pronounced a verdict in Anjali Kumari v Union of India & Ors[2].  In the present case, the Petitioner contended that the Respondent’s actions were in violation of the aforementioned judgment.

The Petitioner was initially faced with a charge of alleged misconduct from her employer to which she had responded with allegations of sexual harassment against the Respondent. The Disciplinary Authority appointed by the NHPC did not respond to her allegations of sexual harassment. Instead, they issued a warning letter to the Petitioner without giving her a preliminary inquiry report with the list of charges and witnesses, as prescribed in the NHPC Disciplinary Rules (“NHPC Rules”). The Petitioner then filed a First Information Report (“FIR”) with the police, against the Respondent. Despite this, she was issued a show cause notice by NHPC without following the requisite period of 15 days under the NHPC Rules.

The Petitioner had challenged the disciplinary proceedings before the High Court, contending that the warning letter and the show cause notice were retaliatory in nature and filed as a response to her allegations of sexual harassment. The court eventually ruled in the Petitioner’s favour, concluding that the impugned warning letter and the show cause notice were not issued in accordance with the NHPC Rules, and that it was issued as a form of retaliation against the Petitioner for filing the sexual harassment complaint. Additionally, the court condemned NHPC’s actions, holding that they had mixed up the boundaries of professional misconduct and sexual harassment, thereby misusing the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”). The court eventually quashed the disciplinary proceedings.

Post the judgment, it came to light that the Respondent had taken part in the performance appraisal of the Petitioner. The performance appraisal had been conducted at the time of the hearing, and it was released before the judgment was pronounced. Thus, the Respondent had taken part in the performance appraisal while being cognizant of the sexual harassment allegations and the FIR lodged against him. This resulted in the Petitioner filing a contempt petition before the Calcutta High Court, challenging her performance appraisal process. The court stated that the accused cannot take part in the performance appraisal of the complainant while an investigation against the Respondent is on-going under the POSH Act. Additionally, Rule 8(a) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 specifically empowers the Internal Complaints Committee (“ICC”) to recommend restraining the respondent from reporting on the work performance of or writing the confidential report of the complainant. The court then concluded by requiring the Respondent and the NHPC to demonstrate that they have not acted in contempt of the judgment and that the performance appraisal is unconnected to the charges of sexual harassment. The matter has been listed for further hearing on 4 August 2023.

The High Court opinion reiterates the importance of following the principles of natural justice during a sexual harassment inquiry. In terms of the court’s order, if the accused is allowed to report on the work performance of the complainant, that creates a circumstance of negative bias, hampering the career prospects of the complainant. The court also opined that the delineation and differentiation between the procedural boundaries and instances of sexual harassment versus professional misconduct must be properly understood and addressed by employers.

[1] CPAN 24 of 2023.

[2] W.P.A 1935 of 2022.

Key Action Points for Human Resources and In-house Counsel

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 aims to protect the rights and interests of women employees who have filed a complaint of sexual harassment as per the law. It is important for the ICC members and the employer to ensure that the complainant is not subject to any form of retaliation and in this regard should ensure that even potential situations of retaliation against the complainant should be avoided.