Principles of Natural Justice in a Sexual Harassment Proceeding

Principles of Natural Justice is also the Necessary Ingredients for Constitution of Internal Complaints Committee under The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

Case Name - Rashi vs. Union of India and anr., W.P. (C) 3396/2019 Dt/- 04.12.2020 (Delhi High Court)

“Natural justice is a great humanizing principle intended to invest law with fairness and to secure justice”

– Justice Bhagwati in Maneka Gandhi v. UOI

The Petitioner was a contractual employee preferred a complaint alleging sexual harassment against the Chairperson of the Rehabilitation Council of India. The Petitioner was terminated from service on 3rd October, 2018. The case of the Petitioner- was that her complaint of sexual harassment against the ex-Chairman of the establishment was not being considered in accordance with law. Petitioner services were terminated with effect from 3rd October, 2018. She filed a writ petition seeking appropriate direction to the employer which was disposed of with a direction to the respondents-employer to look into the petitioner's complaint and take action in accordance with law.

In the Internal Complaints Committee (ICC), constituted for the purpose, the chairperson was Junior to be accused, hence the complainant objected to it. The Department issued directions to reconstitute the ICC in terms of the Office Memorandum dated 26th September, 2008 and the extensions thereof. Union of India filed a review petition seeking fresh direction in view of the fact that after the POSH Act has come into operation, the ICC could only be constituted in terms of section 4 of the POSH Act. The Central Government was asked to reconsider the constitution of the ICC. Being not satisfied from the steps taken by the employer, the petitioner filed a present writ petition. After having considered a number of decided cases by the Supreme Court and High Courts, the Court observed that complaint is against ex-Chairman of RCI under DEPWD. Though that ex- Chairman is no longer in service of the department but he is/was closely connected with the DEPWD. Members of the Committee may have worked under the Ex-Chairman. Hence, there is a greater need to ensure that the ICC is independently constituted and the Inquiry is conducted fairly to both parties. Thus, when allegations are made against senior level officers, this Court is of the opinion, that the same should be inquired into by a Committee appointed not at the level of the Department but someone external and independent high ranking authority, to ensure fair and proper enquiry, to meet the objective of the POSH Act.

Under the above facts and circumstances, it is directed that the ICC be constituted within four weeks by the Cabinet Secretariat, consisting of such persons who are independent and unbiased, to enquire into the allegations made by the Petitioner/Complainant since complaints are against high ranking officers.

The High Court further observed that it is the settled position in law that the ICC should be a body which is objective and neutral. It ought not to be biased in any manner. The ICC should be headed by a woman and not less than half of its members should be women. The independent ICC is to ensure that its members are impartial and fair.

When allegations are made against senior level officers, the same should be inquired into by ICC constituted not at the level of the Department but someone external and independent. This is more so in the case of a Government establishment where an alternative mechanism can be easily evolved for the constitution of the ICC to ensure that the object of fair and proper enquiry finding is recorded and to achieve to ensure safety and security of women employees at workplace. The entire thrust of the complaints committee procedure and its underlying premise is that the complainant employees are assured objectivity and neutrality in the inquiry. Members of the ICC should not have conflict with any of the parties involved. There should be no cause for bias for or against any of the parties. Members of the ICC ought to possess blemish-less credentials. Independent members are needed on the ICC to aid, advise and assist the ICC in a fair and impartial manner. An independent person should actually be someone external and cannot, for example, be the panel lawyer of an employer in a situation where the Complainant and the Respondent are employees of the same employer. There should be no undue pressure and influence on the ICC from senior levels. The principles of natural justice should be followed scrupulously. The proceedings should lend confidence and assurance to the Complainant and make her comfortable. Women should not be the object of sympathy or pity but a Complainant who takes courage to speak out against unwelcome behavior regardless of the perpetrator is a survivor. The inquiry proceedings should inspire the confidence of the Court.

Delhi High Court

Rashi vs Union Of India And Anr. on 6 December, 2019

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 6th December, 2019

W.P.(C) 3396/2019 & CM APPL. 52375/2019 

RASHI ..... Petitioner

Through:

Mr. Prateek Tushar Mohanty, Ms. Payal Mohanty and Mr. Tushar Rajan Mohanty, Advocates. (M:9810083003)

versus

UNION OF INDIA AND ANR. ..... Respondents

Through:

Ms. Maninder Acharya, ASG, Mr. Abhay Prakash Sahay, CGSC and Ms. Indira Goswami, Advocate. (M:9775952189)

CORAM: JUSTICE PRATHIBA M. SINGH 

C.M APPL. 52375/2019

1. Notice. Ld. counsel for the Petitioner has been served in the matter and has addressed arguments today. Early hearing allowed. W.P.(C) 3396/2019

2. On 1st October, 2018, the Petitioner - a contractual employee preferred a complaint alleging sexual harassment against the Chairperson of the Rehabilitation Council of India. The Petitioner was terminated from service on 3rd October, 2018.

3. Since no action was being taken on the complaint, Writ Petition (Civil) 11734/2018 was filed, which was disposed of vide order dated 30th October, 2018 with the following observations:

"1. Vide the present writ petition, the petitioner seeks direction to respondent No. 1 to act on the complaint dated 28.09.2018 and the complaint dated 12.10.2018 of the petitioner in terms of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the Office Memorandum dated 27.11.2014 of the Department of Personnel and Training and also the provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.

2. Learned counsel appearing on behalf of respondent No. 1 submits that they have not received a copy of the writ petition filed by the petitioner, therefore, this court may direct the petitioner to supply the copy of the petition and accordingly, the action on the complaint filed by the petitioner would be taken as per law.

3. Accordingly, the petitioner is directed to supply a complete set of paper book to learned counsel appearing on behalf of respondents during the course of the day.

4. Respondents are directed to look into the complaint filed by the petitioner and take an action on it, accordingly, as per law.

5. This writ petition is accordingly disposed of"

4. Thereafter the Internal Complaints Committee was constituted and notice dated 8th February 2019 was issued to the Petitioner for appearance. It is the case of the Petitioner that since she was accompanied by a counsel who was her Defense Assistant, she was not allowed to be heard. Due to the inability expressed by a member of the ICC, the same was reconstituted by the Ministry of Social Justice vide order dated 18th February, 2019. The Petitioner is aggrieved by the impugned order by the fact that this constitution was contrary to office memorandum dated 26th September, 2008 issued by the Cabinet Secretariat. According to the Petitioner, whenever the complaint is against a Secretary level Officer, as per the said office memorandum dated 26th September, 2008, the complaint has to be referred to a committee under the Cabinet Secretariat. The grievance of the Petitioner was that the committee which was constituted by the Ministry of Social Justice was not in accordance with the said office memorandum. She thereafter filed the present writ petition, seeking the following reliefs

"In view of the facts and circumstances mentioned herein above and the submissions made, the Petitioner prays that the Hon'ble High Court may be graciously pleased to:

(i) issue rule nisi to the Respondents;

(ii) direct the Respondents to produce the relevant records pertaining to the present case at the time of hearing of the Petition;

(iii) upon return of the notice and after hearing the parties to the present proceeding and upon perusal of the relevant records, may be pleased to allow the present Writ Petition;

(iv) quash and set aside the Order dated 18.02.2019 [Annexure : P-2] as being bad in law;

Or, alternatively

(v) quash and set aside the appointment of Shri Rishi Kant Singh, Advocate as the member of the Internal Complaints Committee; and

(vi) direct the Respondents to seek the nomination from any of the present two Lady Additional Solicitor Generals appointed by Government of India [Ms. Pinky Anand or Ms. Madhavi Goradia Divan], as the Hon'ble High Court so directs, of a Lady Advocate as the Member of the Internal Complaints Committee;

(vii) quash and set aside Paragraph 2(b) of the Letter dated 18.03.2019 [Annexure : P-1] as being bad in law;

(viii) to consequently direct Respondent No. 2 to conduct the Proceedings in terms of Rule 14 of Central Civil Services (Classification, Control and Appeal) Rules, 1965 as far as possible and if the same is not possible, then pass a reasoned and speaking order for any deviations therefrom;

(ix) to permit the Petitioner to be present during the entire enquiry, as the Petitioner apprehends that the enquiry may not be fair and impartial;

(x) quash and set aside Paragraph 2(c) of the Letter dated 18.03.2019 [Annexure : P-1] as being bad in law;

(xi) to consequently direct Respondent No. 1 to revoke any Vigilance Clearance granted to the Accused in the Complaints of the Petitioner;

(xii) to consequently direct Respondent No. 1 not to issue any fresh Vigilance Clearance to the Accused in the Complaints of the Petitioner till the Proceedings are decided in their favour;

(xiii) quash and set aside Paragraph 2(d) of the Letter dated 18.03.2019 [Annexure : P-11 as being bad in law;

(xiv) to permit the Petitioner to be accompanied by her Advocate/Friend/Defence Assistant during the enquiry;

(xv) to permit the Petitioner to adduce evidence during the enquiry in the manner the Petitioner and/or her Defence Assistant fills fit in terms of the provisions of Rule 14 of Central Civil Services (Classification, Control and Appeal) Rules, 1965;

(xvi) allow exemplary costs of the present Writ Petition to the Petitioner against the Respondents;"

The writ petition was listed on 3rd April, 2019 on which date, the proceedings before the ICC was stayed by this Court.

5. The submission of ld. counsel for the Petitioner is that the Government of India ought to follow consistency, and the constitution of the ICC has to be strictly in terms of the office memorandum 26th September 2008 confirmed by dated 2nd February, 2009. If the ICC is constituted in terms of the said office memorandum, the Petitioner would participate in the enquiry. He further submits that the Petitioner should be permitted to take the services of a defence assistant in order to assist the Petitioner in the inquiry proceedings, such as conduct of cross-examination etc., if required. It is further submitted, while relying upon the judgment of a ld. Division Bench of this Court in Writ Petition No. 821/2014 tiled Avinash Mishra v Union of India (Decided on 30th September, 2014) that once the inquiry commences, the same would be akin to proceedings which could potentially culminate into major misconduct under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 ("CCS (CCA) Rules, 1965"). He thus submits that if these grievances of the Petitioner are taken care of, the ICC may be re-constituted and the proceedings could commence accordingly.

6. On behalf of the Union of India, ld. ASG Ms. Maninder Acharya submits that the stand of the Government through the Ministry of Social Justice is that the Ministry sent a request to the Cabinet Secretariat for appointment of a committee. However, the Cabinet Secretariat advised the Department to refer the matter to the Department's ICC. On a query, however, she submits that the said letter of the Cabinet Secretariat is not available on record. It is, thus, submitted that the ICC was thereafter constituted internally, which has been challenged before this Court.

7. Insofar as the permission for a defence assistant and compliance with the order passed by the ld. Division Bench is concerned the same is binding law under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The provision of a defence assistant and the fact that any inquiry would culminate to an inquiry under Rule 14 of the CSS(CAA) Rules, 1965 is clearly not challengeable by the Government. The observations of the ld. Division Bench in Avinash Mishra (supra) are as under:

"The concern of the Supreme Court in Vishaka (supra) and the subsequent rulings in Apparel Export Promotion Council v A.V. Chopra 1999 (1) SCC 759, and the interim order in Medha (supra) was the accountability of the State and its departments to ensure that workplaces are free from offensive behaviour, which amounts to sexual harassment. The public interest underlined in ensuring that such behavior is not tolerated is not is not only in regard to its being a misconduct vis-à-vis the employer, but also its ensuring accountability of the public employer to maintain the workplace and its environs secure and safe to all women employees. If one sees this issue from this perspective, what is immediately discernable is that upon receipt of a complaint which prima facie discloses allegations of sexual harassment, the disciplinary authority has little choice but to refer it to the Complaints Committee. The proviso to Rule 14(2) and Rule 3C of the CCS (Conduct) Rules, 1964 make it clear beyond a shadow of doubt that the procedure to be adopted thereafter has to be, as far as possible, akin to proceedings which can potentially culminate in imposition of major misconduct under Rule 14. The petitioner's contentions, therefore, that the disciplinary authority had a choice of either instituting or refusing to initiate disciplinary proceedings, therefore, has to fail."

8. The office memoranda dated 26th September 2008 and 2nd February 2009 read as under:

1.Office Memorandum dated 26th September, 2008 Subject: Constitution of a Complaints Committee to enquire into complaints of sexual harassment made against officers of the level of Secretary and Additional Secretary to the Government of India With the approval of the Prime Minister, it has been decided to constitute a Complaints Committee to enquire into complaints of sexual harassment made against officers of the level of Secretary and Additional Secretary and equivalent level in Ministries, Departments and organizations directly under the control of the Central Government other than Central PSUs.

2. The Committee will proceed in accordance with guidelines laid down by the Supreme Court in the case of Visakha and Others vs. State of Rajasthan. The composition of the Committee will be as follows:

i. Ms. Rathi Vinay Jha, (IAS retired)

ii Ms. Indu Agnihotri, Senior Fellow, Centre for Womens's Development Studies, New Delhi Iii A senior official with experience of the sector or department to which the complaint relates (to be nominated for each case depending on the Department/Ministry to which the complaint relates)

3. The Committee will have a tenure of three years from the date of issue of this order and will be serviced by the Cabinet Secretariat."

Office Memorandum dated 2nd February, 2009

"Subject: Central Civil Services (Conduct) Rules, 1964 - constitution of a Complaints Committee to enquire into complaints of sexual harassment made against officers of the level of Secretary and Additional Secretary to the Government of India The undersigned is directed to refer to the Department of Personnel and Training's O.M. No. 11013/10/97- Estt. (A) dated 13.02.1998 on the guidelines ad norms to be observed to prevent sexual harassment of women issued under rule 3 of the Central Civil Services (Conduct) Rules, 1964 in pursuance of the judgment of the Hon'ble Supreme Court in Vishakha & Others vs. State of Rajasthan & Others (JT 1997 (7) SC 384) and to say that 

• para 6 of the Supreme Court's guidelines provides for creation of an appropriate complaint mechanism so as to ensure time-bound treatment of complaints of sexual harassment. 
• Para 7 thereof stipulates that the Complaints Committee should be headed by a woman and not less than half of its members should be women and that further to prevent the possibility of any undue pressure or influence from senior levels such Complaints Committee should involve a third party, either an NGO or other body who is familiar with the issue of sexual harassment. 
• The various Ministries/Departments were also advised vide DOPT's O.M. No. 11013/10/97- Estt (A) dated 13.07.1999 to ensure that the Committee constituted for redressal of the complaints by victims of sexual harassment should be headed by an officer sufficiently higher in rank so as to lend credibility to the investigations. 
• Subsequently, in 2004 a proviso was added to rule 14(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 to the effect that the Complaints Committee established in each Ministry or Department or Office for inquiring into complaints of sexual harassment shall be deemed to be the inquiring Authority appointed by the Disciplinary Authority and that the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into such complaints, the inquiry, as far as practicable in accordance with the procedure laid down in the said rules.

2. For inquiring into complaints made against officers of the level of Secretary and Additional Secretary and equivalent level in the Government of India in the Ministries/Departments and Organizations directly under the control of the Central Government (other than the Central PSUs), it has been decided with the approval of the Prime Minister to constitute a Complaints Committee in terms of Cabinet Secretariat's order No. 1 dated 26.09.2008 (copy enclosed). Existing Complaints Committee established in each Ministry or Department or Office will, therefore, inquire into fresh complaints of sexual harassment against only those Government Servants who are not covered by the Cabinet Secretariat's order dated 26.09.2008."

The above memoranda clearly show that as per the Government's own policy, if the complaint is against any officer who is Secretary level or above, the constitution of the ICC shall be by the Cabinet Secretariat. It is not clear from the submissions made today as to why the Cabinet Secretariat, in this case, did not constitute the ICC. There is no document placed on record which show that the Cabinet Secretariat asked the Ministry to constitute its own ICC.

9. The Ld. ASG submits that the Government has no objection to reconstitute the ICC and there has been no departure from the above two memoranda, as per her instructions. In view of the above two memoranda, it is clear that the ICC in the present case has to be reconstituted - which has in fact been agreed to by the UOI. Once the committee is re-constituted, the committee shall take a decision as to whether upon a request by the Petitioner for a counsel i.e., a legal practitioner ought to be permitted or not. Needless to clarify that a defence assistant will in any case be permissible to the Petitioner during the inquiry proceedings. Accordingly, the following directions are issued:

i. The ICC shall now be constituted strictly in accordance with the office memorandum dated 2nd February, 2009 issued by the Government of India Ministry of Personnel, Public Grievances and Pensions since the complaint is against a Secretary level officer. The earlier constituted committee shall stand terminated and a new committee shall be appointed within four weeks.

ii. Insofar as the provision of a defence assistant is concerned, the Petitioner is permitted to avail the services of a defence assistant to assist her in the proceedings. If the Petitioner makes a request for the defence assistant to be a legal practitioner i.e., an Advocate or a lawyer, a view on the same shall be taken by the ICC in accordance with law.

iii. The inquiry, in terms of the judgement of the Division Bench shall be an inquiry under Rule 14 of the CSS(CAA) Rules, 1964 read with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

10. Upon the ICC's recommendation being submitted, the same shall be dealt with by the authorities in accordance with law. Remedies of all parties are left open. With these observations the petition and all pending applications are disposed of.

PRATHIBA M. SINGH JUDGE DECEMBER 06, 2019