The enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (the Act) was a major step in the Indian legal system towards securing a safe working environment for women.
It can indeed be said that the constitution and functioning of the Internal Complaints Committee (ICC) is one of the important cornerstones of the Act to provide an effective redressal mechanism to victims of sexual harassment in an organisation. The Act and the rules framed thereunder briefly provide for the manner of conduct of the inquiry into a complaint, quorum for conduct of inquiry, action during pendency of an inquiry, report of the ICC, recommendations to the Employer for disciplinary action etc. The legal provisions specifically state that the ICC shall make the inquiry into a complaint in accordance with the “principles of natural justice.”
However, nowhere do the relevant provisions contain any guidance as to what would constitute principles of natural justice and what points should be kept in mind by the ICC members while conducting the inquiry. The provisions do cast the responsibility on the Employer to organise capacity building trainings for the members of the ICC. Nevertheless, a review of the recent judgments of the hon’ble Courts show that the Courts in several cases have come down heavily on the ICC for not following the principles of natural justice and have set aside the report of the ICC noting the “entire process to be farce.”
On a perusal of various cases the following points seem relevant wherein the courts have set aside the reports of the ICC –
- Copy of the complaint to be provided to the accused[i].
- Non-furnishing of the copy of the findings of ICC vitiates the inquiry process and violate the principles of natural justice. The second proviso to Section 11 of the Act mandates that when both the parties are employees, the copy of the findings of ICC shall be made available to them, thus enabling them to make representation against the findings before the ICC[ii].
- Copy of the inquiry report to be furnished to the accused[iii].
- Principles of natural justice must be followed in conducting the inquiry. The essence of principle of natural justice is that when prejudicial statements are made, the same shall not be used against any person without giving him an opportunity to correct and contradict. Accused to be given the opportunity to rebut the statement of the victim and the witnesses[iv].
- The Act and the Rules framed thereunder do not in any manner prohibit cross-examination of a complainant or her witnesses before the ICC by the respondent in his presence. Cross-examination through a prepared questionnaire may not in all cases serve the purpose of an effective cross examination. It is always open to the ICC to modulate the mode and manner of cross-examination so that the right of a party to the proceedings under the Act, be it the complainant or the respondent to be treated fairly is not abrogated[v].
- Verbal cross-examination is not the sole criteria to contradict any statement given by the complainant. If the ICC is of the view that the complainant is feeble and cannot withstand any cross-examination, the ICC can adopt such other measures to ensure that the statement is contradicted by the accused in other ways. Fair opportunity must be given to the accused to contradict the statements and offer explanation. Non-adherence to the principles of natural justice would make the proceedings farce and the report of the ICC is liable to be set aside[vi].
- Enquiry by ICC must be initiated within the time frame provided under Section 9(1) the Act[vii].
- ICC report in violation of Section 13 of the Act is liable to be set aside. The ICC report ought to record the findings of the inquiry and the findings must be final and conclusive. When the report records only prima facie findings then it is liable to be set aside[viii].
In simple terms principles of natural justice in the context of proceedings conducted by ICC would mean-
- that both parties get an equal chance to present their case
- that the parties should get the right of cross examination
- that the inquiry proceedings should be conducted with all fairness
- that the ICC should pass a detailed order with adequate reasoning
- that no one should be the judge in their own case
The capacity building trainings of the ICC members need to be focused on educating them about the importance of the principles of natural justice. The ICC members must also be regularly updated about the important case laws on the subject matter so that they can conduct the ICC proceedings considering the latest judicial interpretations. This is crucial to enable them to discharge their duties effectively and in a fair and impartial manner. Not only must Justice be done, it must also be seen to be done.
[i] P. Govindaraju Vs.The Manonmaniam Sundaranar University MANU/TN/2612/2020
[ii] The Managing Director, HDFC Standard Life Insurance Company Limited and Ors. Vs. Suresh Babu and Ors. MANU/KE/0060/2022
[iii] P. Govindaraju Vs. The Manonmaniam Sundaranar University MANU/TN/2612/2020
[iv] L.S. Sibu Vs. Air India Limited and Ors. MANU/KE/0330/2016; P. Govindaraju Vs.The Manonmaniam Sundaranar University MANU/TN/2612/2020
[v] Institute of Hotel Management, Catering Technology and Applied Nutrition and Ors. Vs. Suddhasil Dey and Ors. MANU/WB/0458/2020
[vi] L.S. Sibu Vs. Air India Limited and Ors. MANU/KE/0330/2016; The Managing Director, HDFC Standard Life Insurance Company Limited and Ors. Vs. Suresh Babu and Ors. MANU/KE/0060/2022
[vii] P. Govindaraju Vs. The Manonmaniam Sundaranar University MANU/TN/2612/2020
[viii] Ashok Kumar Singh Vs. University of Delhi MANU/DE/0392/2017; L.S. Sibu Vs. Air India Limited and Ors. MANU/KE/0330/2016
