Respondent entitled to fair opportunity in inquiry proceedings in case of sexual harassment at work place, to contradict/cross-examine complainant and witness

Kerala High Court: Deciding the question regarding the compliance of principles of natural justice in the context of inquiry conducted by the Internal Complaints Committee (ICC) constituted under the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 the Court held that when prejudicial statements are made, the same shall not be used against any person without giving him an opportunity to correct and contradict.

The issue involved a complaint against the appellant to ICC of Air India, Southern Region of misconduct based on sexual harassment by 17 women employees of Air India-SATS. Based on the complaint, the ICC conducted an enquiry and submitted its report. The appellant was aggrieved on the ground of non-compliance with the principles of natural justice as the inquiry concluded without giving him an opportunity to cross-examine the complainant and to controvert the factual finding in the inquiy report, hence vitiating the same. The stand of the Airport Authority was that the report was a priliminary report to find the apellant’s involvement and when a prima facie case was made out, further disciplinary proceedings would be initiated as per the rules and regulations of Air India.

Setting aside the impugned report, the Bench of Muhamed Mustaque, J. held that every Internal Complaints Committee constituted under the Act necessarily has to follow the principles of natural justice in conducting their enquiry. The Rules framed under the Act also indicate that the Committee shall follow the principles of natural justice [See Rule 7(4)].  The Court observed that the inquiry conducted by ICC as to the fact finding is final unless it is varied in appeal. It cannot be varied by the employer in a follow-up action to be taken in terms of Section 13.

The Court held that “The fundamental principles relating to the principles 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.

The Court noted that verbal cross-examination is not the sole criteria to controvert/contradict any statement of the aggrieved before any authority. Primarily in a sexual harassment complaint, the Committee has to verify and analyse the capability of the aggrieved to depose before them fearlessly without any intimidation. Fair opportunity has to be understood in the context of an atmosphere of free expression of grievance. If the Committee is of the view that the witness or complainant can freely depose without any fear, certainly the delinquent can be permitted to have verbal cross-examination of such witnesses. In cases, where the Committee is of the view that the complainant is not in a position to express freely,  it can adopt such other method permitting the delinquent to contradict and correct either by providing statement to the delinquent and soliciting his objections to such statement. The Court observed that a fair opportunity should be given to the delinquent in such manner as the committee thinks fit to consider. The ICC was directed to reconsider the matter after giving fullest opportunity to the petitioner. [L.S. Sibu v. Air India Limited, Writ Petition (C) No. 4001 of 2016 (A), decided on April 8, 2016]

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