Sunday, 20 December 2020

Whether the Internal Complaints Committee can recommend disciplinary action against lady making a complaint of sexual harassment?

 The constituted ICC, upon analysing the complaint, came to the

conclusion that the relationship between the Petitioner and Respondent No.3

were based on personal grounds with mutual consent, and that the

allegations of sexual, emotional and mental harassment were not

substantiated by the Petitioner. Thus, the complaint against the Respondent

No. 3, was rejected. However, the ICC did not stop there. The ICC went on

to make an observation that the behaviour of the parties had been

inappropriate and unbecoming of Officers/Employees of the Bank, and

accordingly the ICC recommended the Competent Authority to take suitable

action against the Petitioner and the Respondent No. 3, as deemed fit.

As per the above provisions, if the allegations of sexual harassment or

any other form of harassment, as contemplated under the Act, are not proved

before the ICC, the ICC can only recommend the employer to not take any

action in the particular matter. However, the ICC, in the present case, has

gone beyond its statutory mandate, as recognised under Section 13(2) of the

Act. It has, in fact, given observations stating that both the parties i.e., the

Petitioner and the Respondent No.3 have indulged in inappropriate/

unbecoming conduct and indiscipline, and has recommended the competent

authority to take suitable action against them. Giving such a

recommendation is clearly beyond the jurisdiction of the ICC.

15. Complaints of sexual harassment are initially filed with enormous

reluctance. The power of the ICC to hold the enquiry and give a report

ought to be within the scheme and the four corners of the statute itself. If a

case of sexual harassment is not made out, the ICC can only conclude that

no action is required to be taken. On the other hand, if a case of sexual

harassment is made out, then the recommendation of the ICC can only be for

taking appropriate action for misconduct, in accordance with the provisions

of the service rules as contained within Section 13(2) and 13(4) of the Act.

16. It is not contemplated within the provisions of the Act that while

holding that no action is to be taken and the complaint is to be rejected, the

ICC can direct for suitable action on the ground that the parties have

indulged in an inappropriate conduct. Such a determination and

consequential recommendation is beyond the jurisdiction of the ICC.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 16th December, 2020

W.P.(C) 3249/2017 & CMAPPL. 14126/2017

BIBHA PANDEY Vs PUNJAB NATIONAL BANK

CORAM:

JUSTICE PRATHIBA M. SINGH


1. This hearing has been done by video conferencing.

2. The Petitioner has filed the instant petition challenging the

recommendations of the Internal Complaints Committee (hereinafter as

“ICC”), as given in the report dated 15th March 2017, as well as further

action which has been taken by the Punjab National Bank (hereinafter as

“Bank”) on the basis of ICC’s report.

3. The brief background is that a complaint under the Sexual Harassment

of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

(hereinafter as “Act”) was filed by the Petitioner against Respondent No.3,

who was working as the General Manager of the Respondent No. 1 Bank, in

Mumbai. The said complaint was referred to the ICC, which was constituted

by the Bank, consisting of four members.


4. The constituted ICC, upon analysing the complaint, came to the

conclusion that the relationship between the Petitioner and Respondent No.3

were based on personal grounds with mutual consent, and that the

allegations of sexual, emotional and mental harassment were not

substantiated by the Petitioner. Thus, the complaint against the Respondent

No. 3, was rejected. However, the ICC did not stop there. The ICC went on

to make an observation that the behaviour of the parties had been

inappropriate and unbecoming of Officers/Employees of the Bank, and

accordingly the ICC recommended the Competent Authority to take suitable

action against the Petitioner and the Respondent No. 3, as deemed fit.

5. This report, thereafter, resulted in a charge-sheet being issued on 15th

April, 2017, against the Petitioner, under Regulation 6 of the Punjab

National Bank Officer Employees’ (Discipline & Appeal) Regulations,

1977. The foundation of the said chargesheet was the ICC’s report and

certain other facts, which the Bank had ascertained out of the various

communications between the Respondent No. 3 and the Petitioner. The said

chargesheet was served upon the Petitioner, and at that stage, the Petitioner

has preferred the present writ petition.

6. Vide order dated 19th April, 2017, the ld. Single Judge, while

entertaining the present petition, had stayed the ICC’s recommendation and

the consequent charge-sheet. The relevant portion of the said order reads as

under:

“9. Till the next date of hearing, operation of report of

the Internal Complaints Committee (ICC) dated

15.03.2017, insofar as it recommends an action to be

taken against the petitioner and the consequent charge

sheet issued to the petitioner, shall remain stayed.”


7. Thereafter, pleadings were being completed in the matter and at some

point during the pendency of the petition, the Petitioner also became eligible

to be considered for promotion. At that stage, the Petitioner, as recorded in

the order dated 1st October, 2019, submitted that her promotion is being held

up in view of the pendency of the present petition. On the said date, the

following order was passed:

“Matter is to be heard. Ld. counsel for the Petitioner

submits that her promotion is being held up in view of

the pendency of the present petition. Ld. counsel for

Punjab National Bank to take instructions as to

whether the Petitioner is entitled to promotion, keeping

aside, the recommendation of the Internal Complaints

Committee ('ICC') and charge sheet arising therefrom

as the same are subject matter of the present petition

and an interim order has already been passed in

favour of the Petitioner. Let instructions be sought

before the next date.

List on 3rdDecember 2019.”

8. Thereafter, vide order dated 3rd December, 2019, the Bank was

directed to independently consider the Petitioner’s candidature for

promotion. However, it was directed that the same would not be given effect

to and shall be kept in a sealed cover. Due to the lockdown, the matter could

not be heard thereafter.

9. In the meantime, the Bank has also placed on record, in a sealed

cover, the relative performance of the Petitioner and her prospects for

promotion, independent of the charge-sheet against her. The affidavit in

compliance of the orders passed by this Court has been placed on record by

Bank.


10. Mr. Rajesh Kr. Gautam, ld. counsel appearing for the Bank, submits

that as per the affidavit placed on record, the performance of the Petitioner

was also evaluated in the merit list and the Petitioner has become eligible for

consideration for promotion. It is further submitted that there is no doubt

that the ICC concluded that the Petitioner was in a consensual relationship.

However, in terms of the rules of the Bank, whenever there are any

disciplinary proceedings which are pending, the Bank is bound to keep the

promotion in a sealed cover in view of Paragraph 20(1) and Paragraph

20(2.5) of the Promotion policy of the Bank. It is in view of the said

policies that the Petitioner’s result has been kept in a sealed cover.

11. Ms. Vrinda Grover, ld. counsel appearing for the Petitioner, submits

that upon the sexual harassment complaint filed by the Petitioner under the

Act being rejected, the ICC can merely, close the enquiry for the case not

having been made out against Respondent No.3. However, the

recommendation made for taking action due to the alleged “unbecoming”

conduct is contrary to Section 13(2) of the Act. She, further, submits that

insofar as the conclusions of the ICC are concerned, for personal reasons,

the Petitioner does not wish to press any challenge in respect of the

conclusion, so long as the recommendation made by the ICC is set aside by

this Court.

12. Heard ld. counsels for the parties. The first and foremost question

that arises is as to whether the ICC could have, in the first place, made a

recommendation directing the competent authority to take action. A perusal

of the ICC’s report shows that the recommendations of the ICC are as under:


“After detailed deliberations, the committee observed

that both the complainant Ms. Bibha Pandey as well as

the respondent Shri Ashwini Kumar Vats have entered

into a relationship with each other on personal basis,

with mutual consent. The allegations of sexual, mental

and emotional harassment is not substantiated as the

actions on the part of the Respondent and the

allegations cannot be termed as sexual harassment at

workplace as defined under Sexual Harassment of

Women at Workplace (Prevention Prohibition and

Redressal) Act 2013. Therefore, the present complaint

is rejected being non maintainable as per the

provisions of the Act of 2013.

The Committee observes from the records available

that the Complainant as well as the Respondent, have

acted in a manner which is unbecoming of an Officer

employee of the Bank as they have indulged in

inappropriate acts, not maintaining good conduct and

discipline expected of them. The Respondent, being at a

very senior position, failed to maintain the dignity and

decorum of his position. No case under Sexual

Harassment of Women at Workplace (Prevention

Prohibition and Redressal) Act 2013 is made out. Both

the Complainant as well as the Respondent have

behaved and acted in a manner which is not befitting to

the post held by them. On the contrary, it is detrimental

to the organization and has vitiated the atmosphere of

the Bank. The competent authority may take suitable

action against them as deemed fit.”

13. The above conclusions of the ICC are in two parts. In the first part,

the ICC concludes that the allegations are not substantiated and the

complaint is not made out. In the second part, the ICC goes further and

comments on the conduct of the Petitioner and the Respondent. It also

recommends that the Bank `may take suitable action’. Section 13 of the Act,


contemplates various situations relevant to the inquiry report. Insofar as the

ICC is concerned, there are two situations contemplated under Section 13(2)

and 13(3), which are set out below for ready reference:

“13(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:

13(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 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 section15

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.”

14. As per the above provisions, if the allegations of sexual harassment or

any other form of harassment, as contemplated under the Act, are not proved

before the ICC, the ICC can only recommend the employer to not take any

action in the particular matter. However, the ICC, in the present case, has

gone beyond its statutory mandate, as recognised under Section 13(2) of the

Act. It has, in fact, given observations stating that both the parties i.e., the

Petitioner and the Respondent No.3 have indulged in inappropriate/

unbecoming conduct and indiscipline, and has recommended the competent

authority to take suitable action against them. Giving such a

recommendation is clearly beyond the jurisdiction of the ICC.

15. Complaints of sexual harassment are initially filed with enormous

reluctance. The power of the ICC to hold the enquiry and give a report

ought to be within the scheme and the four corners of the statute itself. If a

case of sexual harassment is not made out, the ICC can only conclude that

no action is required to be taken. On the other hand, if a case of sexual

harassment is made out, then the recommendation of the ICC can only be for

taking appropriate action for misconduct, in accordance with the provisions

of the service rules as contained within Section 13(2) and 13(4) of the Act.

16. It is not contemplated within the provisions of the Act that while

holding that no action is to be taken and the complaint is to be rejected, the

ICC can direct for suitable action on the ground that the parties have

indulged in an inappropriate conduct. Such a determination and

consequential recommendation is beyond the jurisdiction of the ICC.


17. `Moral Policing’ is not the job of the Management or of the ICC. Any

consensual relationship among adults would not be the concern of the

Management or of the ICC, so long as the said relationship does not affect

the working and the discipline of the organisation and is not contrary to the

Rules or code of conduct binding on the said employees. It is only if a

complaint is made of sexual harassment under the Act that the Management

can constitute the ICC to enquire into the same. The ICC cannot make

comments on the personal conduct of the parties and the ICC’s jurisdiction

would be restricted to the allegations of sexual harassment and whether a

complaint is made out or not, to that effect. Under these circumstances, this

Court has no hesitation in holding that the last paragraph of the

recommendation of the ICC, which comments on the conduct of the parties

and recommends to the competent authority to take action against the

Petitioner and Respondent No. 3, for their inappropriate disciplinary

conduct, is not tenable and is liable to be set aside.

18. Further, in view of the fact that one of the factors leading to the

chargesheet dated 15th April, 2017, was the recommendation of the ICC, the

chargesheet which seeks to take disciplinary action against the Petitioner is

liable to be quashed and is ordered accordingly.

19. In view of the above position, the fact that the Petitioner has become

eligible for promotion means that the Bank would accordingly offer her

promotion in accordance with her seniority, performance and merit, as per

the applicable service rules. The chargesheet would no longer be an obstacle

in the Petitioner’s promotion and no disciplinary enquiry would now be held

against the Petitioner pursuant to the said chargesheet.

20. The affidavits filed by the Bank in a sealed cover shall be scanned and


be retained on record.

21. With these observations, the present petition and all pending

applications are disposed of.

PRATHIBA M. SINGH

JUDGE

DECEMBER 16, 2020


Print Page

No comments:

Post a comment