It’s not only about what happened but also about where it happened. For many companies, their team members and their Internal Committees (IC), it is often difficult to understand the elements constituting a workplace.

An unfortunate incident of Sexual Harassment while on your way to your workplace, an aggrieved woman, and a person who is not held accountable.

How do you navigate this ?

The recent observation by the Bombay High Court on what constitutes a workplace has once again shed light on the limited scope of the POSH law and its implementation following complaints of Sexual Harassment. While it is true that expanding forms of connection in professional capacity has necessitated expansion of nature of “workplaces”, the Court has made it crystal clear that the definition of a “workplace” cannot be extended indefinitely.

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Case Facts in Brief

The Petitioner in this case and the complainant travelled together in a shared auto rickshaw to their respective workplaces. It is the complainant’s case that on one such day, both the petitioner and the complainant were travelling in an auto rickshaw when the petitioner touched her inappropriately. 

On the contrary, it is the petitioner’s case that his hand by mistake touched the complainant’s breast due to uncomfortable seating. An FIR was registered against him under the Indian Penal Code and parallelly, the complainant also filed a complaint with the Internal Committee of her own organisation.

The complainant’s IC later transferred the complaint to the IC of the petitioner’s organisation and the latter conducted an inquiry into the matter, following which the petitioner was found guilty of sexual harassment and the IC, through an order, recommended that petitioner’s employer must take action against him. The petitioner challenged the said order passed by the IC.

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What did the Bombay High Court Press Upon, In Relation to the Meaning of “Workplace” under POSH Act ?

The Bombay High Court paid close attention to the definition of an “aggrieved woman” under Section 2(a) of the POSH Act. The court found that the definition covers an aggrieved woman who has been subjected to sexual harassment only at a “workplace” and no other location. This court further looked into Section 9 of the POSH Act thereby stating that POSH Act is amply clear in itself that an aggrieved woman can file a complaint of sexual harassment to the IC only if takes place at a “workplace”.

The court, through a combined reading of Sections 2(a) and 9, respectively has pressed upon a simple law in place that an aggrieved woman can file a complaint to the IC against sexual harassment only if it happens at a “workplace”. But, another pertinent question which the court had to address was, what exactly falls under the ambit of “workplace” under the POSH Act.

The court then analysed the definition of workplace which reads, “ any place visited by the employee arising out of or during the course of employment, including transportation by the employer for undertaking said journey, would be included within the definition of the “workplace” to  understand whether the auto rickshaw in the present case fulfills the requirement of being a “workplace”.

For the present case, it became crucial for the court to determine if the shared auto rickshaw would form part of “transportation provided by the employer” or not. The court observed that the auto rickshaw was neither provided by the employer of the petitioner nor by the employer of the complainant. Hence, it cannot be covered under the ambit of “workplace”.

The court’s message was clear-  if an incident of sexual harassment takes place at a workplace, only then will an aggrieved woman be permitted to file a complaint before the IC of her organsation. 

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Why are we discussing this judgment ?

The court’s approach very simply and clearly implied two elements: Firstly, the POSH Act only envisages complaints where incidents of sexual harassment took place at a workplace and no other. 

Organisations must take note of the fact that the role and jurisdiction of IC is limited to complaints of sexual harassment at a workplace. Before initiating the inquiry process, it is very important to determine the same. No jurisdiction means no inquiry under the Act !

Secondly, since we are operating in a digital age, it is common for you, as an IC member, to be confused between what constitutes a workplace under POSH Act and what does not. The Bombay High Court made it explicitly clear that the Act knows it all! 

It not only contains the nuances of a traditional workplace but also of extended workplaces. If you are an IC member, note- that your jurisdiction, role and power is limited to hearing complaints of sexual harassment taking place at a workplace ONLY! 

Determine your jurisdiction. Proceed accordingly.