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Synopsis

The Bombay High Court has ruled that a male colleague making a comment about a female colleague's hair and singing a related song during a workplace training session, does not constitute sexual harassment under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013, also referred to as the POSH Act.

A Single judge bench comprising Justice Sandeep Marne, made the observation while quashing a case filed against Vinod Narayan Kachave, an HDFC Bank employee, who passed a comment on his colleague’s (complainant) hair looking at the length and volume that, “you must be using JCB to manage your hair” and also started singing a song “Yeh Reshmi Zulfein,” related to her hair.

The complainant alleged that the incident occurred on June 11, 2022, during a training session. Apart from this, the complainant cited one more incident wherein Kachave allegedly made a comment to a male colleague, asking if he was speaking to his girlfriend and later joking, “Kyu tumhara machine kharab hai kya?” (Is your machinery not functional?), a reference to his private parts. The complainant claimed to have felt uncomfortable due to this remark, citing it as further grounds for harassment. The complainant  also raised the complaint against another female colleague, her Reporting Manager, stating that she used to ‘check her out’ and casually discussed her attire with other male colleagues.

The matter was taken up by the Internal Complaints Committee (ICC), which found Kachave's conduct to be unprofessional, claiming multiple witnesses confirmed the allegations. The Industrial Court, Pune, dismissed Kachave’s appeal against the ICC findings, prompting him to approach the High Court.

The court analysed each incident and found no intent to sexually harass the complainant by the petitioner. The court took note of a subsequent WhatsApp conversation between Kachave and the complainant, in which Kachave had encouraged the complainant regarding her performance, and she had expressed gratitude. The court stated that the WhatsApp exchanges following the incident showed cordial relations and would cast serious doubt as to whether the complainant was really offended by any particular conduct of the petitioner.

This led the court to conclude that: “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. She herself never perceived the comment as sexual harassment when the comment was made.”

Regarding the second allegation of joking with another male colleague, the court held: “The allegations does not indicate presence of the complainant when the alleged remark was made. The remark was admittedly not directed against the complainant. Both the remarks reflected in the second incident are admittedly against another male employee. Therefore it becomes difficult to believe that the conduct described in second incident would cause any sexual harassment personally to the complainant.”

With regards the allegations against female manager, the court held that it was unrelated to the petitioner and should not have been included in the ICC report. The court criticized the ICC stating that, “the report of the ICC is clearly vague as the same is drawn without discussing the evidence on record. Most importantly, the ICC has not considered the issue whether the allegations levelled against the Petitioner in first two incidents really constitute sexual harassment to the complainant. The allegation involved in third incident had nothing to do with Petitioner’s actions. Still said incident was unnecessarily incorporated in the report of the ICC.”

The court concluded that neither incident met the criteria for sexual harassment. In furtherance, it quashed the ICC report dated September 30, 2022, and set aside the Industrial Court's order from July 1, 2024.

 

Cause Title: Vinod Narayan Kachave v The Presiding Officer (ICC) and Anr.

Appearance: Advocate Sana Raees Khan a/w Advocates Juhi Kadu and Sanskriti Yagnik (for the Petitioner).