Guidelines for Employers and ICC Members : DHC
The case of Linda Eastwood vs. Union of India and Ors., decided by the High Court of Delhi on 23rd December, 2015, is an important one as it discusses several issues in relation to constitution of an internal complaints committee, conduct of an inquiry and preparation of the inquiry report pursuant to the Act of 2013.
‘X’ (“Petitioner”) filed a writ petition before the High Court of Delhi in accordance with Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure praying that her employer be ordered to take action based on the findings recorded by the ICC of the company.
However, the facts in this matter are rather complicated. The facts are that the Petitioner was employed with M/S. Bridge & Roof Co. (India) Ltd., under the Ministry of Heavy Industries & Public Enterprises for 33 years. She filed a complaint against Mr. M.K. Singh, regarding prolonged sexual harassment for two years, with the Internal Complaint Committee (“ICC”) of the company. The ICC investigated into the matter and prima facie came to the conclusion that there was a case of sexual harassment against the respondent. However, when the ICC decided to investigate further into the matter, the respondent did not turn up, on several occasions, for the investigation and the ICC had to make an ex-parte report. On the day when the ex-parte decision was taken, the complainant as well as two of the members of the ICC did not turn up for the meeting and when the report was prepared, it was signed by the Chairperson only, who resigned office on superannuation thereafter. This report held the respondent guilty and was sent to the employer (Ministry as well as President of India) to take action.
In the meantime, however, the respondent was given the additional charge of CMD. Soon after assuming office, he reconstituted the ICC, selecting members at his discretion, and this time he actively participated in the proceedings. The external member of the new ICC was one of the members of the first ICC and had chosen to remain absent on the day the ex-parte decision was taken. Two of the members of the newly constituted ICC were those who had been witnesses (for the complainant) in the proceedings conducted by the previous ICC. Another member of the new ICC was also someone who had been a member of the first ICC but had chosen to remain absent on the day of the decision by the first ICC. However, when the new ICC conducted its inquiry, the respondent promptly appeared before it and the ICC ultimately exonerated the respondent noting that the report submitted by the previous ICC suffered from deformity.
Learned Senior Counsel for the Petitioner urged to initiate action against Mr. M.K. Singh on the basis of the report submitted by the first ICC, but the opposing counsel objected to this stating that the final report had the signature of the chairperson only which implied absence of collective will of the ICC.
After hearing counsels for both parties and examining the facts and circumstances of the case, the Delhi High Court held that:
- Owing to the fact that the inquiry report was not signed by all members of the ICC and neither did it state the reason for absence of ICC members on the day of the ex-parte decision, it held that an inquiry report must be signed by all members of the ICC as not doing so raises doubts on the collective will of the ICC.
- The findings recorded by the second ICC cannot be given effect due to the very fact that the constitution of the ICC was flawed for several reasons – (i) it came into existence when the first ICC had submitted its final report to the Ministry, (ii) Two members of the ICC (who were witnesses of the complainant during investigations by the first ICC) are naturally conflicted and cannot be a part of the second ICC, (iii) The inclusion of two other members to second ICC (who had excused themselves during investigation by the first ICC) is motivated and such cannot be the case.
- No sanctity can be given to the proceedings conducted by the second ICC as its composition was vitiated and flawed and principles of natural justice were flagrantly violated because of the fact that Mr. M.K. Singh being a party to a matter of sexual harassment, actively participated in constituting the second ICC.
Holding that there was an element of bias and conflict of interest, the Delhi High Court held that the employer is expected to:
- Develop clear and precise procedures to deal with complaints of sexual harassment in an effective manner.
- Ensure that the procedure is fair and unbiased.
- Ensure that there is no undue pressure or influence from senior level.
- Ensure that credentials of the Presiding Officer/members of ICC is free of any blemish.
- Ensure that the entire investigation is impartial, independent and without any bias for or against any party.
It also said that members of the ICC are expected to ensure that no injustice is done.
Eventually, in this case, a consensus was arrived at between the parties to conduct a de-novo enquiry by reconstituting the ICC, yet again, and this time it was left to the Court to select the Presiding Officer and the members. Conclusively this reconstituted ICC was directed to start its proceedings within ten days and submit its report as per the time frame prescribed by the Act.
This is certainly an extremely important case law from the point of view of an employer as well as an ICC member as it lays down the basic principles they must keep in mind while constituting the ICC and while preparing the inquiry report, respectively.