Too Late for a POSH Complaint – Too Soon to Forget?

Authored by Vishaka S

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) seeks to provide an effective mechanism for addressing sexual harassment at the workplace. Yet, like most statutory remedies, that mechanism operates within defined procedural boundaries. One such boundary is the limitation period for making a complaint.

The question, however, is not always simply whether a complaint was filed within time. In cases where the alleged harassment is followed by other events such as administrative action, interaction with the alleged perpetrator, threats, or apprehension of future harassment, the more difficult question is – what constitutes the “last incident” for the purpose of calculating limitation?

Recent judicial decisions have brought this question into sharper focus. At the same time, the Supreme Court’s observations in Vaneeta Patnaik v. Nirmal Kanti Chakrabarti & Ors. introduce another dimension that deserves equal attention- the distinction between legal limitation and ethical accountability.

The statutory framework- Where does the clock start?

Section 9 of the POSH Act provides that a complaint of sexual harassment is to be made to the Internal Committee within three months from the date of the incident. Where the complaint concerns a series of incidents, the period is to be reckoned from the date of the last incident. The Internal Committee may extend the period by a further three months if it is satisfied that circumstances prevented the woman from making the complaint within the prescribed period. Thus, the statutory framework contemplates a maximum period of six months from the relevant incident or last incident.

The importance of identifying the “last incident” determines whether the statutory mechanism under the POSH Act can be invoked at all.

The difficulty arises where events occurring after the last alleged act of sexual harassment are sought to be relied upon to extend the limitation period. Not every subsequent event can have that effect. It is against this statutory backdrop that the recent decision of the Calcutta High Court assumes significance.

The recent Calcutta High Court decision: Can apprehension of future harassment extend limitation?

In a recent judgment, the Calcutta High Court considered a complaint by a contractual Data Entry Operator who alleged that a Deputy Superintendent of Police had touched and stroked her back and waist inappropriately on several occasions between September 2021 and July 2022.

Subsequently, when she encountered the alleged perpetrator at the CID office in or around October 2022, it caused her apprehension that she could again be posted under him and subjected to similar harassment.

She ultimately filed her complaint on January 5, 2023. The Internal Complaints Committee found the allegations to be true and recommended departmental action. However, the West Bengal Administrative Tribunal set aside the ICC’s report on the ground of limitation.

The matter reached the Calcutta High Court, where the principal question was whether the subsequent encounter and the complainant’s apprehension of future harassment could constitute a fresh incident for the purpose of Section 9. The Court answered this in the negative.

The Court observed that the POSH Act contemplates an actual act or behaviour constituting sexual harassment. A mere apprehension in the mind of the complainant that she may face harassment in the future does not, by itself, constitute a fresh act of sexual harassment. Since no actual incident of sexual harassment was alleged after July 2022, July 2022 remained the last incident for the purpose of Section 9. The complaint filed in January 2023 was therefore beyond the statutory period.

Against this backdrop, the Supreme Court’s decision in Vaneeta Patnaik assumes significance, as it brings the question of delayed complaints into sharper focus within the statutory scheme of the POSH Act.

Vaneeta Patnaik– Not every subsequent act is continuing sexual harassment

In Vaneeta Patnaik v. Nirmal Kanti Chakrabarti & Ors., the Supreme Court considered a complaint concerning alleged sexual harassment by the Vice-Chancellor of the National University of Juridical Sciences. The allegations dated back to 2019, with the last alleged act of sexual harassment stated to have occurred in April 2023. The formal POSH complaint, however, was filed only on December 26, 2023.

The complainant sought to rely upon subsequent events, including her removal as Director contending that such events formed part of a continuing hostile environment and therefore brought the complaint within time. The Supreme Court rejected that contention that the removal and inquiry arose from an independent complaint and were collective administrative decision.

The principle emerging from Vaneeta Patnaik, therefore, is not merely that delay is fatal. It is that a subsequent event cannot automatically be treated as a continuation of sexual harassment simply because it occurred after the last alleged incident.

The important distinction- Legal limitation is not the same as erasure

It is here that Vaneeta Patnaik becomes particularly interesting.

While dismissing the complaint as time-barred, the Supreme Court made an observation that goes beyond the immediate question of limitation:

“It is advisable to forgive the wrongdoer, but not to forget the wrongdoing.”

The Court went a step further and directed that the judgment be made part of the respondent’s résumé. The direction is unusual, but its significance lies in the distinction it creates between legal consequence and ethical accountability. This distinction is particularly important in the context of workplace sexual harassment.

A complaint can be time-barred without the conduct becoming ethically insignificant.

What does this mean for the recent Calcutta High Court decision?

The same distinction can be applied when considering the recent Calcutta High Court decision. Although the complaint was time barred, it does not mean that the original allegations should necessarily disappear from institutional consciousness. This is perhaps the more enduring lesson from Vaneeta Patnaik.

The statutory clock may eventually stop. The responsibility to build a workplace in which sexual harassment is taken seriously should not.

Perhaps, therefore, the most appropriate way to understand limitation under the POSH Act is not that it permits institutions to forget, but that it defines how long the statutory machinery can be set in motion.

Beyond that period, the law may close one door. It should not require us to close our eyes to what happened.