Delhi High Court: What should ICC Remember while Inquiring into a Complaint?
In a recent case, Manjeet Singh vs. Indrapastha Gas Limited, decided by the High Court of Delhi on 24.10.2016, held that the person against whom a complaint of sexual harassment has been filed, must be presumed to be innocent until there is evidence to show otherwise. It went on to say that while an internal complaints committee (“ICC”) is a mechanism put in place to assist women who complain of sexual harassment at their workplace, it is equally important that the goodwill, fair name and dignity of an innocent accused be dealt with the utmost care and the dignity of neither party can be trifled with in an inquiry proceedings.
The facts of the case are that a lady filed a complaint of sexual harassment against her boss, Mr. Manjeet Singh (“Petitioner”). She complained that he flirted with her, tried to hug her, showed her pictures of some Iranian girls, clicked her picture without her knowledge and generally acted in an inappropriate manner. The ICC, upon an inquiry, concluded that Petitioner was guilty of sexual harassment and the company, reduced the rank of the petitioner to one lower post, based on this conclusion of the ICC.
If the case was so clear, why did the Court hold the above?
The ICC that conducted the inquiry, stated in its report that:
- The specific charges levelled against Shri Manjeet Singh by the complainant could only be proved partially due to lack of evidence.
- Though there were circumstantial evidence, such as general behaviour of the complainant after the date of incident, sharing a part of the incident with her colleagues etc., it could not be substantiated completely that the respondent had actually indulged in unwelcoming act of behaviour as defined under section 2(9) of the Act.
- The other charges of showing photographs of Iranian ladies and suggestive conversation could also not be proved.
After making the above observations, what the ICC concluded was absolutely contrary to its observations. The ICC concluded that “…from the overall circumstances of the case, the Committee has reached the conclusion that the respondent, Mr. Manjeet Singh, had intentionally or unintentionally, indulged in a behaviour which can be termed as more than familiar or even flirtatious, in terms of transgressing the lines of acceptable behaviour at a workplace, which impinged on the complainant’s modesty.”
As a result, the ICC found the Petitioner guilty of misconduct in accordance with the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and recommended action against him.
The Court, therefore, said that quite clearly, the inquiry report has not found the petitioner guilty of the charge levelled against him, although it has gone on to impute a behaviour which it has termed as “….more than failure or even flirtatious, in terms of transgressing the lines of acceptable behaviour at a workplace….”. Based on the observations of the ICC itself, the Court concluded that there was insufficient, in fact no material on record for the ICC to have concluded as it did and then to have imposed the penalty on the Petitioner. It, therefore, set aside the conclusion reached by the ICC and held that ICC must respect the dignity of both parties and must presume the alleged harasser to be innocent, until evidence shows otherwise.
ICC must follow principles of Natural Justice for conducting an inquiry:
It is important to note that the Act provides that the ICC must make inquiry into the complaint in accordance with the principles of natural justice. Though the principles of natural justice have many shades, one of its basic tenets is that one must pass a reasoned order i.e. the order must have a valid basis. As the above did not appear to be a reasoned order, the court had to set aside the ICC’s decision.
Another principle of natural justice is that one must always hear both parties. It is for the same reason that the Act has also provided that on receipt of the complaint, the ICC must send a copy of the same to the alleged harasser and give at least 10 days to the alleged harasser to file the reply. This is to ensure that both the parties are given an equal opportunity to be heard.
ICC must hear both parties and allow cross-examination:
With respect to hearing both parties, the Petitioner, in this case had argued that during the enquiry, the petitioner was never allowed to cross examine the complainant and that the ICC, instead of providing an opportunity to the petitioner to cross examine the complainant, made them sit across each other at the table and ask them to cross-examine each other.
The Court held that cross-examination cannot be reduced to a mutual allegation of charges against each other or a verbal duel of unpleasant and perhaps intemperate language. For the delineation of truth the orderly conduct of cross-examination is essential. The procedure cannot be reduced or relegated to a farce where two opposing parties are left at the mercy of each other’s articulation of expressions, lung power, dominative or domineering attitude, etc. much to the embarrassment and personal affront to the dignity of the innocent party. While it may not always be possible to apply strict rules of procedure especially in cases of the nature at hand (several courts have dispensed with the requirement of cross-examination in matters of sexual harassment, depending on facts and circumstances of the case), nevertheless a modicum of order in the conduct of cross-examination is essential for it to be lent any credence. Adherence to natural justice forms the foundation of both quasi-judicial and administrative inquiry. There can be no leeway in applying the principles of fair-play in either type of inquiry between the two. The principle of fair play is to guide all administrative action.