Straightaway imposition of punishment on the basis of ICC findings not tenable being violative of natural justice

Sexual harassment at workplace cases 

Not giving a chance to the accused or the complainant to argue his/her sexual harassment at workplace case and not applying the law applicable before accepting and acting upon the recommendations of the Internal Complaints Committee (ICC) is violative of principles of natural justice, the High Court of  Calcutta has ruled in the case of Debjani Sengupta v. Institute of Cost Accountants of India &  Ors. 

Facts of the Case 

The petitioner, Ms. Debjani Sengupta, filed a complaint under Section 9 of The Sexual  Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the said Act) dated November 17, 2016 against accused, alleging  that the said respondent had humiliated and mentally harassed her by using abusive language, words with dual meaning and sexually coloured remarks on several occasions in the year  2015, more particularly August 2015 and on later occasions further harassed her, by denying leave on medical grounds. Proceedings before the ICC commenced on the satisfaction of the ICC that it was a fit case to be dealt with under Section 9 of the said Act. On April 21, 2017 the ICC gave its recommendation under Section   13(3) of the said Act. 

Ms. Sengupta preferred an appeal before the Deputy Chief Labour Commissioner (Central) (in short DCLC) on July 21, 2017. The said appeal was returned to her on September 12, 2017, by the office of the DCLC (Central), where she was informed that the DCLC (Central) was not the appellate authority and the appeal was thus being returned. Aggrieved by the said communication Ms. Sengupta filed another writ petition which is pending before this court. Thereafter, the Ms. Sengupta received a copy of the memorandum dated February 19, 2019 issued by the President of the Institute, from which she came to know that the accused had been issued a show-cause notice on September 12, 2018 calling upon him to respond to the report of the ICC and on consideration of the response of the accused. The institute remitted the matter back to the ICC with a direction for submission of a fresh report after consideration of the examinations, cross-examinations of the witnesses and all other submissions made by Ms Sengupta and the accused. Aggrieved by the aforementioned memorandum, the instant writ petition was filed. 

Decision of the Case 

 It was held by the honourable Court that the order dated February 19, 2019, suffers from illegality and was hence quashed and set aside, on the ground of procedural impropriety and also a violation of the principles of natural justice. The institute was directed to take immediate steps as indicated above in accordance with Rule 91 of the service rules, treating sexual harassment at workplace as ‘misconduct’. A charge sheet under Rule 91(iii) of the service rules was to be issued and the proceedings were to be conducted from that stage as per the service rules. 

Rationale of the Case 

The High Court made a conjoined reading of section 13(3) of the POSH Act, 2013, along with rules 7 and 9 of the POSH Rules mentioned above. Such a reading dictates that where service rules existed, the report of the ICC was a fact-finding report or a preliminary report with regard to the allegation of sexual harassment at workplace and the employer was bound to then proceed under the service rules before imposing any major penalty. In other words, the fact report could only be considered as binding in cases where no service rules had been created earlier. If there are service rules which govern the employees of the organization, then those must be taken into account as well. The proper imposition of law is necessary to grant justice all the parties concerned. This also sets the correct precedent for any such future matters. Any ruling or order in violation of principles of natural justice goes against the very fabric of Indian law, which is based upon transparency and access to justice for all. There might have been procedural impropriety on the behalf of the Institute, who wrongly interpreted the rules, but it was corrected by the High Court of Calcutta.

To avoid such instances at workplace, it is imperative to train your ICC members on how to conduct workplace harassment investigations.