From 2014 to 2017: How Courts Have Interpreted ICC’s Role Under The POSH Act 2013

Written By: Ishrita Bagchi, Edited by: Ungender Blog Team

The Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act, 2013) envisioned the creation of a body known as the Internal Complaints Committee (ICC) in every workplace. ICC under POSH Act 2013 is meant to act as a watchdog to ensure that workplaces are safe spaces for women and that complaints of sexual harassment in the workplace can be resolved internally to the greatest extent possible.The Internal Complaints Committees are meant to conduct fair and impartial inquiries and arrive at solutions that are acceptable to the employee. Ever since POSH Act 2013 was enacted, there have been numerous occasions where disputes have arisen regarding the extent of ICC’s powers or their method of  functioning.

This article will attempt to briefly analyse some of the principles that have been evolved through numerous judicial pronouncements that have aided in the evolution of the law and in creating greater clarity regarding the functions of this structure. Some of these areas that these judgments have covered are:

1. The importance of the principles of natural justice in the functioning of the ICC
2. ICC’s role in determining the merits of a complaint
3. Role of ICC as a fact finding body and not merely a structure for preliminary inquiry
4. The period of time within which the ICC must conclude inquiry

The ICC need not mechanically issue notices on receipt of a complaint, it may apply its mind to the facts and circumstances to determine the merits of the case.

In 2014, the Calcutta High Court in  Shri Debdulal Maity v. National Insurance Company^[1], held that the scheme of the Act does not require the committee to mechanically issue a notice upon receipt of a complaint. The Internal Complaints Committee has to apply its mind to determine whether a complaint relates to a sexual harassment as defined under the Act of 2013 and whether an incident of sexual harassment occurred at the workplace. It is only on the basis of such prima facie findings that it may attempt conciliation under Section 10, or begin an inquiry under Section 11.

The principles of Natural Justice must always be followed by the ICC in the procedure followed for inquiry. In case the ICC does not follow the principles of Natural Justice, its findings and the report prepared may be set aside.

The clear and consistent position of the courts has always been that the courts do not sit as appellate bodies over the findings and conclusions of departmental authorities. The only instance that may merit interference is when there has been a violation of natural law principles.

However, in case the very nature of the body constituted is considered vitiated, an inquiry can be ordered to be conducted afresh. Further, many judicial pronouncements have helped in chalking out certain specific circumstances where it may be concluded that natural law principles have been violated and have been given greater legitimacy by Section 11 of the Act that provides for the opportunity to be heard and to make representations against findings to both parties; as well as by Rule 7 of the rules framed thereunder which expressly lay down that an inquiry must be conducted in accordance with the principles of natural justice. A number of judgements on the matter have quoted the foundational E.P Royappa judgement to emphasise the indispensability of fairness and absence of arbitrariness in the workings of the Internal Complaint Committees.

There must be no bias or undue influence in the workings of the ICC and the members must be impartial.

Linda Eastwood v. Union of India^[4] is perhaps the best illustration of vitiated ICC proceedings and became a formative case on the subject. X, the complainant had been working in a company under the Ministry of Heavy Industry and Steel for 33 years. She issued a complaint against MK Gupta alleging sexual harassment over a period of two years and the matter was referred to the ICC. During the course of the investigation, some members of the ICC were shifted and hence, unable to continue in the capacity of members.The first committee unanimously felt that a prima facie case had been made out, but the final report was signed only by the Chairperson of the committee, Ms. Linda Eastwood. This report, which was duly sent to the concerned authorities concluded that the charges were proven and that he must be punished under the provisions of the law- but no action was taken. In the meantime, MK Singh was appointed the CMD and reconstituted a committee that included some members who had been a part of the old committee. This committee came to a different conclusion, that MK Singh had erred in using impolite language to the complainant on occasion and that this was being used to implicate him on false sexual harassment charges. The court held that the reports neither of the Internal Complaints Committees could be relied upon, as the first was not representative of the collective will and the second had been appointed by the accused himself, clearly violating the principle of natural justice. A de novo enquiry was ordered. The basic principles that must be ensured, thus, are that the procedure followed must be fair and unbiased, there must be no undue influence from a senior level and the selection of the members of the committee must be free of any blemish.

The ICC must allow the respondent the right to challenge any prejudicial statements made against them, allow them the right to cross examine the complainant and witnessesm, as well as lead evidence in their favour.

In Manjeet Singh v. Indraprastha Gas^[5], the Delhi High Court held that the principles of natural justice would include an opportunity for cross-examination; interpreting the term broadly to ensure that the right is not just nominally extended but actually ensured. In support of its conclusions, it drew a parallel to the complaints committees created under the Vishaka guidelines which were to function in accordance with the Civil Services Conduct Rules and whereby actions by the disciplinary authority could only be taken in accordance with the rules.Thus, in this instant case, the preparation of a list of questions could not be considered a grant of the right to cross examine-as unlike verbal questioning, there would be no ability to reformulate the question or draw cohesive conclusions. Accordingly, the order was struck down.

Similarly, if the respondent is not given the right to lead evidence in their own favour, the entire enquiry becomes wholly one sided and fails to abide by the natural justice principle of granting both sides a fair hearing, hence, rendering such an enquiry vitiated. Similarly, the Delhi High Court in Avinash Mishra v Union of India^[6], struck down a report in keeping with natural justice principles as the accused had not been not been given the opportunity to cross examine witnesses or provided with copies of their statements. The inquiry then had to be conducted afresh from the stage of examination of witnesses, as this part of it had been vitiated.

The ICC has the sole jurisdiction to inquire into the complaints that come to it and its findings can only be set aside if the order is shockingly disproportionate.

However, while in the aforementioned instances the court intervened to prevent contravention of natural justice,the Bombay High Court judgement in Vidya Akhave v. Union of India^[7] makes explicit the fact that the court must not ordinarily interfere in the proceedings of ICCs. In this case, the employee made a complaint against her immediate supervisor and thereafter, sought the establishment of an Internal Complaints Committee as legally mandated. Post this, the committee was set up and on the basis of its report, the Disciplinary authority demoted the supervisor by two ranks, lowered the pay-scale in accordance, and transferred him to another city. The employee challenged the validity of this order under Section 226, claiming that the punishment was disproportionate. Here, the court declined to give an order interfering with the decision of the committee, emphasising that judicial restraint must be exercised regarding exercise of powers under Article 226. An order of the Internal Complaints Committee, therefore, can only be interfered with if the order is shockingly disproportionate. Interference is only warranted if there is noncompliance with the principles of international law, if it is against the Wednesbury principle in such that (a) the Order was contrary to law, (b) relevant factors were not considered, (c) irrelevant factors were considered and (d) no reasonable person would have taken such a decision and if it contrary to the doctrine of proportionality. If an enquiry is fair and proper, and all evidence and witness statements were duly considered; the court is not entitled to give a second opinion merely because it has the legal authority to do so. Thus, this judgement greatly raised the stature of ICC’s in that their independence and decision making power were given paramount consideration.

In following the principles of natural justice, the ICC must make sure that the fair opportunity given to the person against whom the complaint is made must be seen in light of maintaining an atmosphere where the complainant may freely express their grievance.

An April 2017 judgement by the Kerala High Court in L.S. Sibu v. Air India^[8] comprehensively laid down that ICC’s must follow the principles of natural justice in conducting their enquiry. The case involved a complaint by 17 Air India-Singapore Air Transport Services against an Officer-Apron. While the officer claimed he had not been given the right to cross examine witnesses, the Air India authorities contended that it was merely a preliminary enquiry and hence, further disciplinary action would be initiated where he may defend any action proposed. A very important position it clarifies, is that natural justice principles are elastic and depend upon the context. The fundamental principle of natural justice is that when a prejudicial statement is made against someone it shall not be used against him until he has been given an opportunity to contradict and correct. In a sexual harassment case, fair opportunity has to be understood in the atmosphere of free expression of grievance. Thus, the court held that since verbal cross examination is not the only measure available, the Committee may undertake any other such measure if the aggrieved is feeble and may not be able to withstand cross examination. Thus, while acknowledging the paramountcy of natural justice principles, this recent ruling has also allowed for acknowledgement of alternatives to rigid standards such as a requirement for verbal cross-examination, thereby extending much needed protection to the aggrieved.

Again, in August 2017, the Delhi High Court in Ashok Kumar Singh v. University of Delhi^[9], taking note of the aforementioned judgement, the court acknowledged the need to ensure a balanced view of  natural justice in the proceedings of the ICC and gave directions to the ICC to carry out it’s enquiry meaningfully and expeditiously. It allowed, therefore, in view of the condition of the witnesses and complainant, that the witnesses may be allowed to remain anonymous and answer cross-examination questions through a questionnaire. This reflects the judicial understanding of the equally pressing need to ensure that witnesses or complainants are not intimidated in the process of ensuring natural justice to the person against whom the case is filed. As in the case, a period of two years had already passed between the filing of the complaint and preparation of the report, the court forcefully re-emphasised that an enquiry must be completed within ninety days of receipt of the complaint. The court issued instructions to the ICC on how to conduct the enquiry in the specific case, including instructions to submit the report within three months and start the enquiry in two weeks, in light of the delay.

This case represents a conciliation of two stances whereby the court is not merely detached observer but can interfere only if the demand is urgent.

Enquiry made by the ICC is a full-fledged inquiry as to finding of fact and not merely a preliminary inquiry.

In the L.S.Sibu vs Air India^[10] case, the court held that inquiry under Section 13 of the Act  is clearly a full fledged inquiry as to finding of fact. Thus, the status of the ICC is that of an Inquiry Committee for disciplinary action under the Service Rules. Further, under Section 15, the ICC can provide for the compensation to be paid by the delinquent to the aggrieved. Recognizing the appellate remedy available under Section 18, the Court drew the conclusion that this proved that the inquiry report is final unless appealed and cannot be subsequently varied by the employer through follow up action under Section 13.

The Internal Complaints Committee is mandated to come to a definite conclusion as to guilt.

In the Ashok Kumar case^[11], the petitioner contested, in addition to the fact that principles of natural justice had not been followed, that all the three reports prepared by the ICC contained only prima facie findings and hence, must be set aside. The court, upon a perusal of the relevant sections, found that an inquiry is always initiated under Section 11 of the Act; and after the inquiry by the ICC, submitted to the employer under Section 13; and hence, such inquiry is not merely a preliminary inquiry.

These decisions, especially the most recent ones-reflect that over a period of time, there has been a deepening in the judicial understanding of the contingencies and problems specific to sexual harassment that an ICC under POSH Act 2013 may often face. Thus, there has been a shift to more pragmatism in evaluating the functioning of ICCs under POSH Act 2013.

^[1], WP No. 459 of 2014

^[2] WRIT – A. No. 13763 of 2015

^[3] 1998 (3) SCC 45

^[4] WP 1904 of 2013

^[5] W.P.(C) 6352/2016

^[6] 2014 (215) DLT 714

^[7] WP No. 196 of 2015

^[8] WP(C).No. 4001 of 2016 (A)

^[9] WP 7371 of 2016

^[10] WP(C).No. 4001 of 2016 (A)

^[11]  WP 7371 of 2016

About the author: This post has been written by Ishrita Bagchi, as part of her assignment with Ungender Insights. Ishrita Bagchi is currently a student of National Law University , Jodhpur.

Ungender Insights is the product of our learning from advisory work at Ungender. Our team specializes in advising workplaces on workplace diversity and inclusion. Write to us at contact@ungender.in to understand how we can partner with your organization to build a more inclusive workplace.