Dinesh Divekar
Business Mentor, Consultant And Trainer
Psdhingra
Legal Analyst, Hrm
Cite Contribution
Community Manager
Riteshmaity
Labour Law Advocate
SAIBHAKTA
Retired From Air India
Transpersonal Coach-Khursheed Kanga
Psychotherapist & Executive Coach
Nahuja1
Hr Admin
+2 Others

Hi All,

Very recently a girl has accused me for physical harassment and only reason is because once I was at home at talking to other colleague of mine in office and while talking I spoke about her husband & used few slangs/ bad words in a very basic way 2 male friend talk to each other. However, the friend I was talking to had his cell on speaker and the girl listened entire conversation. After this incident she filed a physical harassment case against me to HR Director. Complaints she has maid are like, I used to hug her, used to take selfies with her and tried giving her a massage and also made a complaint of words I used for her husband.
Now the difference is that we have been colleagues for over 3 years and sometimes when meeting her I used to greet her by giving a "side hug" the way most of youngsters meet nowadays by just keep one hand on other person's shoulder which she also never felt bad.
Now about taking a selfie, incident was like she complimented me a by saying I am looking smart so I was taking my picture and after clicking few mine I asked her to take a pic together and we clicked a pic together, however, later she asked me to delete the pic as if someone see that pic might assume something else so I simply cropped her from the pic and while taking that selfie there was good distance between both of us.

On the initial complaint HR Team, Legal Team, HR Business Ops team and my direct boss got involved as a committee and found that I never had any bad intentions towarda her and those actions were just my friendly gesture because that's the way I even used to meet my boss whenever she used to come India. Then, the committee gave me a warning letter and asked me to write an apology to my boss which I did because I did use few words for her husband.

However, almost after 3 weeks that girl (complainer) again reached out to HR saying that she is not happy with decision taken by initial committee and would like to pursue the matter to AHC (Anti Harassment Committee) after which our HR team has asked me not to come to office till AHC make their decision and to do WFH.

I read the entire policy for AHC and it is just in favour of girl, it also mentions that a girl does not need any proof while making such complaints but a guy would need proof in order to proof himself correct.

I am now sitting at home and waiting for the committee to kick me out of the company without I even doing something wrong. One day while the matter was with initial committee the girl made a general comment to another person that "if someone will say anything bad for my husband then I will even kill that man" which clearly reflects her intention to take revenge.

In the mean while I got a promotion as well which ignited the girl more.

I have spoken to a lawyer and he suggested me to resign and walk out of the company peacefully. But why should I resign when I never did anything wrong? I am a married person with my wife working in same company. Now both of us are dying each day while waiting for the result.

Any suggestion?
12th May 2016 From India, undefined
Here are few suggestions based on my observation in one my offices where a similar case happened:

a) In Indian society 90% of the times girls are favored, whenever a case of harassment is there. People stop using their heads and take emotional decisions. Now, if you have faith in your AHC and you think they will go by the facts then you can wait for a decision.

b) While you are waiting, why don’t you search for a job too? Don’t take it personally, but you have got a big lesson in your life and I know your intentions were right but sometimes people label us based on our few actions and that’s what is happening with you. So, move on!

c) A legal battle with only make the case more worst and you will end up wasting your time, money and efforts. However, if you can approach a lady lawyer (yes, a lady lawyer) and see that she specializes in such cases then pursue the case.

d) Write a mail stating your point to the top management of your company and ask them to expedite the decision so that you have clarity as to where you stand.

I am not an HR expert or legal expert so this is what I think. You may ask for other senior people in your life and hope people give you more guidance here. All the best!
13th May 2016 From India, Delhi
Dear N Ahuja,

At this point proving you intent is next to impossible. Casual behaviour crosses lines without announcing. You can hug anyone and take a selfie, but you will never have any control over how they construe it. Hence in future, please draw lines to keep yourself and everyone else safe!

Your boss may not misconstrue an hug, she is from a different culture. Our tilt is very different. A woman at a work place may not initially take an offence on such physical gestures or flirtatious comments, just to get along, but she might harbour anger and vent it, at a wrong point of time.

I couldn't understand why you had to talk lowly about someone's spouse? Well, that's your choice. I am sure you would be the last one to repeat it again.



Your lawyer is correct. You should resign ASAP and look for new job. Save all what you can, before its too late. Please discuss with your team to give you a clear exit and no negative comments during your back ground verification.

As Atul suggested, a request to expedite the process would be good, if only things are in your favour. Try and gauge it with your boss and the HR team before you proceed.

You still have your life to save. Wish you all the best !
13th May 2016 From India, Mumbai
Sorry to say this,you have actually brought this upon yourself may be unwittingly.

Indian society for all its modernity in certain respects, is very conservative when it comes to ladies of the family.

Movie scenes or stories may paint different story but in real life,one has to maintain a discreet distance and avoid physical contact beyond a hand shake at most.

Reading your post it is clear you have erred in understanding the lady and added upon by badmouthing her husband.

i really do not understand the motive of your friend to leave mobile loudspeaker on for the whole conversation.

Consult a good lady lawyer and find a way out and try for clean exit from the company immediately.

Evidence is against you and try for a compromise after taking proper legal advice from a lawyer who deals with such cases.

Learn the right lessons from this unhappy episode.

You may never had bad intentions but the effect of your actions depends on reaction of the lady who apparently has taken it amiss.

Legally your conduct falls under Section 2(n) of Prevention of Sexual Harassment Act,wherein physical contact is treated as an unwelcome act.

Best course of action will be compromise,apology and quiet exit.

However once again you are advised to take legal advice on the whole set of circumstances which may not be described in our post.
13th May 2016 From India, Pune
There seems to be no legal remedy at this juncture unless and until you can point out and raise some technicalities issues in relation of the charges with help of an able lawyer.
And refrain yourself from hugging and taking selfie. Try to maintain a distance and difference between professional and personal life.
Check my blog www.labourlawhub.com for more information.
13th May 2016 From India, Kolkata
Dear N Ahuja,

This is in addition to what other senior members have said. My comments are as below:

a) Yes, the entire problem have arose because of undue familiarity with a colleague of the opposite gender. It is not even a question of gender. It is more because of inability to understand the psychology of the person working around you. You had taken everybody for granted. You behaved as if the social norms those were accepted to you were acceptable to others as well.

b) When the female colleague raised the issue of sexual harassment, you would have refuted all the allegations. For any allegation there has to be material evidence. You had passed unsavoury comments against the husband of female colleague worker. Those comments were heard by the female worker as the speaker of the mobile phone was on. But then where is the evidence of those unsavoury comments?

c) You had taken selfie with the female colleague. Generally this is done in the public places. How can anyone harass in the public place? Secondly, selfies are taken with one's consent. Why did she pose for the photograph? Yesterday's consent becomes today's harassment? What is this dichotomy?

Final comments: - Sometimes one has to be not just diplomatic but manipulative as well. Sooner she raised the complaint of sexual harassment, you should have approached this forum. You have approached this forum too late. Probably you have accepted the allegations of side hugging etc. Other than taking selfie, you should have not have accepted any allegation. Any action has to be based on material evidence. Yes, female colleague could have brought witnesses in her defence, nevertheless, you could have told that for any wrong doing, they could have raised the objection that time itself. Even now also you may talk with lawyer and discuss feasibility of sending the lawyer's notice for tampering reputation of honest person.

Comments on HR: - Your HR should have not obliged for putting forth this matter for AHC. Partially fault belongs to them also. Just because some female employee is not "happy" with the verdict of the enquiry that does not mean that she should be obliged for escalation.

Thanks,

Dinesh Divekar


14th May 2016 From India, Bangalore
""How can anyone harass in the public place?""
Harassment can take place in public places also.
The issue here is he has apologised and admitted in writing something which can go against him.
Even evidence of selfie is in Posters mobile unless he shared it.
Had he denied ,it could have been safer and provided a basis for defence.Unfortunately from what he has written he had been casual and free spirited without realising that it can create trouble for him.
Undue familiarity without response has been one cause of problems,though from is written poster did not have any intention to harass etc.
14th May 2016 From India, Pune
Dear Mr Nathrao,

"How can anyone harass in public place?" I asked this question in different context. Yes, harassment can take place in public place also. But this is a case of workplace and not what happens on the road. Many times there are cases of fights among family members wherein bystanders remain mute spectators. Nevertheless, company employees are different from bystanders on the road. If harassment had taken place at the workplace, other colleagues also would have stood up to the salacity of their colleague. Why they felt nothing wrong per se? Secondly, any transgression should come with a warning. Why she did not approach HR for giving warning to a member for transgression of behaviour?

It is a plain truth that a female colleague is taking revenge because her male colleague passed some offensive comments against her husband. For this she is taking advantage of her gender. Raising complaint of sexual harassment is an ultimate weapon at the hands of Indian women. She is using this to destroy the life of her colleague.

For the originator of the Post: - In my previous post, I wrote about serving lawyer's notice to the female colleague. Opposite of this option is talking to HR and finding out whether the case can be resolved amicably. You have to exercise the option judiciously.

Lessons to HR Professionals in General: - To avoid instances of this kind, it is pertinent for HR to define what constitutes sexual harassment and what does not. Secondly, it is important to define how to handle a breach. What is a minor breach and what is a serious breach. The entire instance must have become talk of the town in the company. This vitiates a organisation's culture. HR is No 1 protector of company's culture. This protection comes with creating right guidelines or policies and avoiding instances of this kind. In few companies, there is "Policy on Workplace Romance". Today's romantic behaviour is fire powder for tomorrow's sexual harassment case.

Thanks,

Dinesh Divekar
14th May 2016 From India, Bangalore
HR professionals need to read the latest act of 2013 about sexual harassment and probably brief people about acceptable conduct.
Any incident should be handled firmly and nipped in the bud itself.
Office romances should be gently discouraged as it can give rise to harassment cases,if things go sour..
Best way is be friendly and professional and maintain discreet distance.
14th May 2016 From India, Pune
Hi Nahuja,

I don't believe you should resign from the company as that is probably what the complainant likely wants ( to get you fired). So though i am not a lawyer, I feel your lawyer's advice is not helping the issue at hand as this can be an example for HR to keep in mind when the AH policies can be misused and not give women carte blanche rights in AH matters. Since you read the policy which is in favour of women mainly, you could in fact appeal to bring about changes in the same where men are taken in the equation too.

- I know that these AH policies can and do need to be amended and updated each year. Everyone in the organization should be invited to give feedback about the policy and their awareness of it, which will give the Anti-Harassment Committee information both about the policy itself and how widely it has been shared.

Few queries:

1) Does/did your company provide any orientation/training on AH at the workplace to employees in the past ?

- employees need to be aware of the steps that will be taken if an employee makes a harassment complaint.

I feel that is important as the definitions of AH can be varied across cultures.

2) All investigations need to be handled by an individual who has the necessary training and experience. In some cases, an external consultant may be engaged for this purpose. So who comprises the AHC in your company?

3) Was a Mediation Process brought in prior to proceeding with the harassment investigation? The main purpose of mediation is to get the parties to understand each other, clarify the matter between them and put an end to the alleged offensive behaviour

Few more thoughts that come to mind:

- Since she has appealed to the decision made by the AHC and they are AGAIN reviewing- that means they have accepted the appeal on the basis of procedural errors, bias on the part of a member of the Committee, new information that was not previously available, or claims that the decision was arbitrary or not fully reviewed.

- So, have you been sent another report about the reason why you have been asked to WFH? or was it informally suggested?

- The fact that you and her were "colleagues for over 3 years and sometimes when meeting her I used to greet her by giving a "side hug" the way most of youngsters meet nowadays by just keep one hand on other person's shoulder which she also never felt bad. " - and she NEVER mentioned that to you, or complained to HR earlier, shows most likely this is not a valid point for harasssment.

- The Selfie point seems totally unvalid as we all know how common it is in current society. If she was agreeable initially then asked u to delete it,and you did, technically there is no proof of you having taken any selfies with her! So where is the harassment here??

I honestly feel your case will be dealt in your favour (though obviously this is just one side of the story) as there doesnt seem any substantial harrasment against her by you!

My last thought is - why was your "friend" putting your call on speaker? THAT is something you aught to clarify from that "friend" as that smacks of plotting to 'get you' !!

All the best and feel free to consult me privately concerning this case.

peace,

Khursheed
14th May 2016 From India, undefined
Mr Khursheed,

I disagree that case will be decided in his favour.Case will go against him based on what has been written itself.

Coupled with his apology,case can go against.

Secondly intention is unimportant in sexual harassment cases.

Compromise is the only way out.

Laws against harassment are favourable to ladies and this law is passed by Honble Parliament.Social and other circumstances necessitated this favourable law.

Vishakha Judgement has now been converted into statutary law.

Dowry Act was misused and many suffered and now there is a mental process to stop unjust suffering of an innocent male.

Similarly when Harassment Act provisions are misused by a bigger section of ladies,probably changes will take place.

Right now where males and females work together,one has to ensure distance and public interactions in a manner which is acceptable.

Once you take liberties like side hug,selfies,you are giving chance to the party to raise harassment charges.

I am sure in this case person had no intentions of harassment and was being normal and friendly.

Company culture also is relevant in this case.

But to my mind he needs to understand lady had kept in mind the side hugs and complained about it.Probably she never liked it or used it as a convenient weapon at time of convenience.

But law is in her favour.

Compromise and sort issue out.Exit from company is one way to avoid adverse fallout.

Best source of legal advice is from a lawyer.

We can only guide with best of intentions and without any bias.
14th May 2016 From India, Pune
Dear Mr N. Ahuja,

First of all let me demonstrate my greetings to you that you can easily win this case. Now read my opinion given below:

1. SHWW (PPR) Act, 2013 - Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 does not straight away admits that complainant is true and the accused is guilty.

2. The Act provides under Section 4 that there has to be in place an Internal Complaints Committee (ICC) in every organization, whether government or private. The ICC is to be headed by a woman employee of senior rank. The Committee must consist of minimum four members as under:
(i) Chairperson
(ii) Two woman members of same office committed to social cause for women,
(iii) One external member preferably from an NGO or person familiar with issues of sexual harassment. For more details read my Blog on this topic at cmlalsrivastava.blogspot.in

3. In view of above, please assure yourself that first complaint was to be dealt by ICC, which was required to be duly notified in your office through an office order/circular. If the first Committee was not duly notified ICC, then it has no legal standing under the Act. You have to give details about it. Moreover what kind of apology was tendered by you? And what warning letter was issued to you? You have to give details of these two documents.

4. Section 9 provides that a complaint is to made within three months. Please check this aspect.

5. Section 12 of the Act does not prescribe that you should be sent on leave. Leave is tobe granted the aggrieved woman, no the the accused person

6.
15th May 2016 From India, New Delhi
The above post is again informative.
But one should remember that whatever is written and given as an apology becomes evidence to great extent.
Warning letter was given and not contested.
Three month period can be waived in case lady gives adequate reasons.
The laws favour women in this case and it is never wise to challenge when there is evidence of touching(side hugs).
Selfies can also go against the male.
Whatever technical loopholes are there,the case is not a win win situation where male will be scot free.
Some office co worker put his mobile on speaker mode to let the lady hear conversation,who knows next which witness will pop up.
Even if acquitted the stain will remain and will be an Achilles heel for the gentleman concerned.
However I personally wish that things work out fine for the original poster and matters get resolved.
15th May 2016 From India, Pune
Dear members,
The poster had uploaded his long post on 12-May-2016. The last line of the post reads "Any suggestions?" Considering the gravity of the post, seniors have given their views. In the course of discussion, cross-section of views emerged. Nevertheless, the poster has gone incommunicado after the first post. Four days passed but he/she is yet to find time to acknowledge the valuable views expressed by seniors. Therefore, prudence on our part demands waiting for N Ahuja's second post. Unless he/she clarifies, there is not point in providing one-sided solutions.
For N Ahuja: - Propriety demands acknowledgement of the views provided by others. This was not even your problem your friend's. To serve the interest of your friend, seniors have spent their valuable time selflessly. Can we expect graciousness from your side please?
Thanks,
Dinesh Divekar
15th May 2016 From India, Bangalore
Dear Mr Ahuja

Due to technical problem the entire matter could not be typed in my previous reply. Please read further:

6. Section 12 of the Act prescribes to grant leave to the aggrieve woman, not the accused employee. Hence the action of Hr to send you on leave is not in accordance with law.

7. ICC, before taking up complaint for inquiry, has to inform the Complainant about the provision of conciliation given in Section 10 of the Act. However, conciliation will be resorted to if complainant gives a consent for it. Please note that you don’t have to admit any allegation, but always be firm to deny all these allegations.

8. ICC, as per rules, has to act upon the complaint within a period of seven days and complete the inquiry within a period of 90 days as given in Section 11 of the Act.

9. ICC has to make inquiry in accordance with service rules of the company/organization, in its absence by following the principles of Natural Justice and Rules.

10. You can easily win your case, prove that complaint is false and motivated. After completion of inquiry and getting its report, you can file a criminal case of defamation against the complainant.

11. Read my blog for details on the topic of ICC at, cmlalsrivastava.blogspot.in

12. You are sure to win your case.

You can contact me for guidance and advice at srivastavacmlal@gmail.com
09818680671
15th May 2016 From India, New Delhi
Mr. Ahuja,
Sexual harassment or not, but your description, in itself speaks about your over-indulgence on developing closeness of relationship with the opposite sex with no close familiarity that too when you had been found to be critical about his domestic affairs by speaking bad words about her husband. With howsoever style you had been hugging her by side or otherwise, you had created an open evidence against yourself in the eyes of other colleagues, irrespective of whether she reacted or not. You should know that most of the colleagues just try to enjoy in such a bad situation with any colleague and become witness to corroborate her statement.
Please note, provisions on the issue being so stringent, the law tilts much more on her side.
So, try to wriggle out of such a situation for the present by being apologetic to her and avoid any over-indulgence in relationship with any female colleague for the future.
15th May 2016 From India, Delhi
Dear N Ahuja,
Member after member is providing his valuable advice. However, it could tantamount to barking up wrong tree because of your non-communication. Therefore, I am closing this thread temporarily. When you wish to respond, you may send me private message. On receipt of your message, the thread will be opened.
For Learned Members: - You may give your valuable replies to some other needy member or a poster who has given clarifying post to his/her first post.
Thanks,
Dinesh Divekar
15th May 2016 From India, Bangalore
Dear Mr Ahuja

I wish to welcome you with an assurance that you can win you case. Do not be disheartened or discouraged by some opinions that suggest resigning from the job etc. I give below the expert opinion for your knowledge and revival of your self confidence:

1. Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2012 enjoins upon every employer vide Section 4 to constitute an ICC (Internal Complaints Committee) to deal with complaints of sexual harassment. The ICC must have minimum four members.

2. Out of the minimum four members, one member must be an external member either from an NGO or a person familiar the issues of sexual harassment. This is mandatory. Read my article on this topic at cmlalsrivastava.blogspot.in for detailed knowledge.

3. It is only the ICC that can handle the complaint and make an inquiry. Please check compliance of these provisions of law in your organization.

4. Whether the first committee that heard the complaint against you was an ICC, if not, its proceedings are null and void.

5. Please note that you don’t have to admit the allegations at any stage. Always deny the allegations firmly. The circumstances of your case show that the case has been planted against you.

6. Section 12 of the Act prescribes to grant leave to the aggrieve woman, not the accused employee. Hence the action of Hr to send you on leave is not in accordance with law.

7. ICC, before taking up complaint for inquiry, has to inform the Complainant about the provision of conciliation given in Section 10 of the Act. However, conciliation will be resorted to if complainant gives a consent for it. Please note that you don’t have to admit any allegation, but always be firm to deny all these allegations.

8. ICC, as per rules, has to act upon the complaint within a period of seven days and complete the inquiry within a period of 90 days as given in Section 11 of the Act.

9. ICC has to make inquiry in accordance with service rules of the company/organization, in its absence by following the principles of Natural Justice and Rules.

10. You can easily win your case, prove that complaint is false and motivated. After completion of inquiry and getting its report, you can file a criminal case of defamation against the complainant.

You can contact me for guidance and advice at srivastavacmlal@gmail.com
09818680671
15th May 2016 From India, New Delhi
Dear Mr Ahuja,
Clearly as most of the respondents have stated that your friend has very little chance to vindicate himself.The case shall go against him.Atleast I feel so.But I see a glimmer of hope before your friend puts in his papers or is kicked out.He used to give her a side hug , take selfie without her ever getting offended means the two were on friendly terms . The hell was let loose because , rather foolishly , your hriend used slang language for her husband.Therefore I suggest that your friend meet her directly and offer unconditional apology and request her to take back charges levied.He has already learnt a lesson of his life and the lady in question might agree !
15th May 2016 From India, New Delhi
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