principles of natural justice is that when a prejudicial
statements are made, the same shall not be used against any
person without giving him an opportunity to correct and
contradict. In sexual harassment complaint, sometimes the
complainant may not have courage to depose all that has
happened to her at the work place. There may be an
atmosphere restraining free expression of victim's grievance
before the Committee. The privacy and secrecy of such
victims' also required to be protected. It is to be noted that
verbal cross examination is not the sole criteria to controvert
or contradict any statement given by the aggrieved before
any authority. Primarily, in a sexual harassment complaint,
the committee has to verify and analyse the capability of the
aggrieved to depose before them fearlessly without any
intimidation. If the Committee is of the view that the
aggrieved is a feeble and cannot withstand any cross
examination, the Committee can adopt such other measures
to ensure that the witnesses statement is contradicted or
corrected by the delinquent in other manner. The fair
opportunity, therefore, has to be understood in the context of
atmosphere of free expression of grievance. If the Committee
is of the view that the witness or complainant can freely
depose without any fear, certainly, the delinquent can be
permitted to have verbal cross examination of such
witnesses. In cases, where the Committee is of the view that
the complainant is not in a position to express freely, the
Committee can adopt such other method permitting the
delinquent to contradict and correct either by providing
statement to the delinquent and soliciting his objections to
such statement.
18. What is reminded here by this Court to the
Committee is that a fair opportunity should be given to the
delinquent in such manner the Committee think fit to
consider. There is no easy and precise rule defining fair
opportunity.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
FRIDAY,THE 8TH DAY OF APRIL 2016
WP(C).No. 4001 of 2016 (A)
L.S.SIBU, OFFICER, APRON, GROUND SERVICES DEPARTMENT (GSD),
Vs
AIR INDIA LIMITED,
A question regarding the compliance of principles of
natural justice has arisen in this writ petition in the context
of an enquiry conducted by the Internal Complaints
Committee (ICC) constituted under the Sexual Harassment
of Women at Work Place (Prevention, Prohibition and
Redressal) Act, 2013 (hereinafter referred to as
`Act 14 of 2013').
2. In view of the legal question that is involved in this
writ petition, this Court is only addressing the legal issue
bereft of facts involved.
3. The petitioner is working as an Officer-Apron in the
Ground Services Department (GSD) of Air India Limited,
Thiruvananthapuram. The ICC of Air India Limited,
Southern Region received a complaint forwarded by the
Airport Director. This complaint alleged to have been raised
by 17 lady employees' of Air India-SATS (AI-SATS), a joint
venture company of Air India and Singapore Air Transport
Services Limited. The Committee conducted an enquiry
against the petitioner based on the complaint. The report of
the Committee is produced as Ext.P23. The issue in this writ
petition is revolved around the validity of the enquiry report,
on the ground of non compliance of principles of natural
justice.
4. The case of the petitioner is that he was not given
any opportunity in the matter and complaint as referred in
the ICC is a forged one by some officials of the joint venture
company and some of the officers of the Air India to wreck
vengeance against the petitioner for having filed a complaint
before the Central Bureau of Investigation (CBI). Therefore,
the enquiry concluded without giving an opportunity to the
petitioner to cross examine the complainant and to
controvert the factual finding in the enquiy report, is vitiated.
5. The stand of the Airport Authority is that the report
is a preliminary report to find the involvement of the
petitioner in sexual harassment as raised in the complaint. It
is contended that when a prima facie case is made out based
on the report, further disciplinary action would be initiated as
per the Rules and Regulations of the Air India and therefore,
the petitioner can defend any action proposed in such
proceedings. It is further contended that on account of the
secrecy and privacy required in conducting such an enquiry
and to give full freedom to the complainant to depose before
the Committee, an enquiry was conducted respecting dignity
of the complainant and also in a fair manner. The
respondents also relied on the Government of India Office
Memorandum dated 16.07.2015 to justify the procedure
followed in the matter. To sum up the defence of the
respondents is that the report now prepared is only a
preliminary enquiry report to signal the management to
proceed further as against the petitioner for the misconduct
based on the sexual harassment.
6. As seen from the pleadings and reports, the stand
taken up the Air India as well as ICC before this Court is that
an enquiry regarding misconduct on sexual harrassment has
not attained finality and it can be proved or disproved in the
disciplinary proceedings if any initiated by the management
based on the report.
7. Act 14 of 2013 was enacted to provide protection
against the sexual harassment of women at work place and
also for redressal of the complaint of sexual harassment.
The preamble of the Act 14 of 2013 is as follows:
"An act to provide protection against sexual
harassment of women at workplace and for the
prevention and redressal of complaints of sexual
harassment and for matters connected therewith or
incidental thereto."
8. Therefore, the provisions in the Act has to be
understood in the light of preamble as above. Section 4
Chapter 2 refers to the constitution of the Internal
Committee, the composition of the members is by
nomination by the employer. The Presiding Officer of the
Committee shall be women employed as senior level at the
work place. Section 9 of Chapter 4 provides for procedure of
raising complaint by aggrieved women. Any aggrieved
women in terms of Section 9 is free to raise complaint in
writing before the Committee. Section 11 provides for a
manner in which an enquiry has to be conducted based on
the complaint. It is appropriate to refer the relevant portion
of Section 11 of the Act 14 of 2013 is as follows:
"11. Inquiry into complaint (1) Subject to the
provisions of Section 10, the Internal Committee or
the Local Committee, as the case may be, shall,
where the respondent is an employee, proceed to
make inquiry into the complaint in accordance with
the provisions of the service rules applicable to the
respondent and where no such rules exist, in such
manner as may be prescribed or in case of a domestic
worker, the Local Committee shall, if prima facie
case, exist, forward the complaint to the police,
within a period of seven days for registering the case
under Section 509 of the Indian Penal Code, and any
other relevant provisions of the said Code where
applicable:"
9. This would show that if the respondent in the
complaint is an employee, the enquiry of the complaint shall
be made in accordance with the service rules applicable. Sub
section 3 of Section 11 also gives the Committee the same
powers vested in a civil court under the Code of Civil
Procedure, 1908 in respect of certain matters referred therein
like summoning witnesses, discoveries etc. Section 13 in this
case is relevant as far as to find the nature of the report
prepared now. Section 13 provides as follows:
"13. Inquiry report. (1) On the completion of an
inquiry under this Act, the Internal Committee or
the Local Committee, as the case may be, shall
provide a report of its findings to the employer, or as
the case may be, the District Officer within a period
often days from the date of completion of the inquiry
and such report be made available to the concerned
parties.
(2) Where the Internal Committee or the Local
Committee, as the case may be, arrives at the
conclusion that the allegation against the respondent
has not been proved, it shall recommend to the
employer and the District Officer that no action is
required to be taken in the matter.
(3) Where the Internal Committee or the Local
Committee, as the case may be, arrives at the
conclusion that the allegation against the respondent
has been proved, it shall recommend to the employer
or the District Officer, as the case may be--
(i) to take action for sexual harassment as a
misconduct in accordance with the provisions of the
service rules applicable to the respondent or where
no such service rules have been made, in such
manner as may be prescribed;
(ii) to deduct, notwithstanding anything in the
service rules applicable to the respondent, from the
salary or wages of the respondent such sum as it may
consider appropriate to be paid to the aggrieved
woman or to her legal heirs, as it may determine, in
accordance with the provisions of section 15:
Provided that in case the employer is unable to make
such deduction from the salary of the respondent
due to his being absent from duty or cessation of
employment it may direct to the respondent to pay
such sum to the aggrieved woman:
Provided further that in case the respondent fails to
pay the sum referred to in clause (ii), the Internal
Committee or, as the case may be, the Local
Committee may forward the order for recovery of
the sum as an arrear of land revenue to the
concerned District Officer."
10. Section 13 read with Section 11 clearly indicates the
enquiry to be concluded under Section 13 is not a
preliminary enquiry contended by the respondents but it
should be a full fledged enquiry as to the finding of fact.
This is so clear from Section 13(3)(i). The enquiry that has to
be conducted by ICC in same manner to prove misconduct in
disciplinary proceedings as referrable in Service Rules, if no
Service Rules exist in such manner, domestic enquiry is
conducted.
11. The status of the Committee, therefore, deemed to
be an Inquiry Committee for disciplinary action under the
service rules (See order of the Hon'ble Supreme Court in
Medha Kotwal Lele v. Union of India [2013(1) SCC 311].
Thus when the enquiry is concluded, what is left to the
discretion of the employer to take action in accordance with
service rules for the proven misconduct. If the Central Civil
Services (Classification, Control and Appeal) Rules would
apply, the starting point of action referred in Section 13(3) of
the Act 14/2013 is from the proceedings under Rule 15 of
Part IV of the above rules. Thus, the choice left to the
employer is to impose penalty in accordance with the service
rules on a proven misconduct. If the service rule provides
any punishment for such misconduct, the punishment can be
imposed based on such findings.
12. The power of the ICC is also very clear from the
Section 15 itself. The Committee can also determine the
compensation payable by the delinquent to the victim. Thus,
it is very clear from Sections 11, 13 and 15, the report of the
ICC is the determining factor to take follow up action by the
employer in accordance with service rules or otherwise.
13. In the background of legal provisions as above,
every Internal Committee constituted under the Act 14 of
2013 necessarily, has to follow the principles of natural
justice in conducting their enquiry. The rules framed under
the Act 14 of 2013 also would indicate that the Committee
shall follow the principles of natural justice [See the Rule 7
(4)]. It is also specifically noted that Section 18 provides an
appellate remedy as against the recommendation. This also
would show that the conclusive nature of the finding of the
fact in the enquiry to be made by the ICC. Thus, it has to be
summed up that the enquiry conducted by the ICC as to the
fact finding is final unless it is varied in appeal. It cannot be
varied by the employer in a follow up action to be taken in
terms of Section 13.
14. Therefore, the next question is, in what manner the
principles of natural justice have to be secured in the enquiry
conducted in a complaint relating to the sexual harassment.
This is a delicate question to be addressed by the Committee
itself. The natural justice has got elasticity and would
depend upon the context in which it is referred.
15. The Hon'ble Supreme Court in Dev Dutt v. Union
of India [2008 (8) SCC 725] observed on principles of natural
justice is as follows:
"What is natural justice? The rules of natural justice
are not codified nor are they unvarying in all
situations, rather they are flexible. They may,
however, be summarised in one word: fairness. In
other words, what they require is fairness by the
authority concerned. Of course, what is fair would
depend on situation and context."
16. Lord Denning in B. Surinder Singh Kanda v.
Government of the Federation of Malaya [1962 AC 322]
observed as follows:
"If the right to be heard is to be a real right which is
worth anything, it must carry with it a right in the
accused man to know the case which is made against
him. He must know what evidence has been given
and what statements have been made affecting him:
and then he must be given a fair opportunity to
correct or contradict them."
17. The fundamental principles relating to the
principles of natural justice is that when a prejudicial
statements are made, the same shall not be used against any
person without giving him an opportunity to correct and
contradict. In sexual harassment complaint, sometimes the
complainant may not have courage to depose all that has
happened to her at the work place. There may be an
atmosphere restraining free expression of victim's grievance
before the Committee. The privacy and secrecy of such
victims' also required to be protected. It is to be noted that
verbal cross examination is not the sole criteria to controvert
or contradict any statement given by the aggrieved before
any authority. Primarily, in a sexual harassment complaint,
the committee has to verify and analyse the capability of the
aggrieved to depose before them fearlessly without any
intimidation. If the Committee is of the view that the
aggrieved is a feeble and cannot withstand any cross
examination, the Committee can adopt such other measures
to ensure that the witnesses statement is contradicted or
corrected by the delinquent in other manner. The fair
opportunity, therefore, has to be understood in the context of
atmosphere of free expression of grievance. If the Committee
is of the view that the witness or complainant can freely
depose without any fear, certainly, the delinquent can be
permitted to have verbal cross examination of such
witnesses. In cases, where the Committee is of the view that
the complainant is not in a position to express freely, the
Committee can adopt such other method permitting the
delinquent to contradict and correct either by providing
statement to the delinquent and soliciting his objections to
such statement.
18. What is reminded here by this Court to the
Committee is that a fair opportunity should be given to the
delinquent in such manner the Committee think fit to
consider. There is no easy and precise rule defining fair
opportunity.
19. The Office Memorandum cannot supersede the
statutory provisions. The statutory provisions are very clear
in what manner this enquiry has to be conducted and
concluded.
In view of the above, the impugned report is set aside.
The ICC is directed to reconsider the matter after giving
fullest opportunity to the petitioner.
The writ petition is disposed of as above.
Sd/-
A. MUHAMED MUSTAQUE
JUDGE
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