In the case of L. S. Sibu vs. Air India Limited and Others, the High Court of Kerala at Ernakulum, held on 8th April 2016 that:
- Referring to the case of Medha Kotwal Lele vs. Union of India, 2013(1) SCC 311, the Court held that the status of the Internal Complaints Committee (ICC) is deemed to be an Inquiry Committee for disciplinary action under service rules.
- The ICC can determine the compensation payable by the delinquent to the victim. Thus, the report of the ICC is the determining factor to take follow up action by the employer in accordance with service rules or otherwise.
- When inquiry is concluded, what is left to the discretion of the employer is to take action in accordance with service rules for the proven misconduct.
- The choice left to the employer is to impose penalty in accordance with the service rules on a proven misconduct. If the service rule provides any punishment for such misconduct, the punishment can be imposed based on such findings.
- Law provides an appellate remedy against the recommendation. Thus, the inquiry conducted by the 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.
- Every ICC has to necessarily follow the principles of natural justice in conducting their inquiry. In what manner the principles of natural justice have to be secured in the enquiry conducted in a complaint relating to the sexual harassment is a delicate question and has to be addressed by ICC itself. The natural justice has got elasticity and would depend upon the context in which it is referred.
- The fundamental principles relating to the principles of natural justice is that when a prejudicial statements are made, the same shall not be used against any person without giving him an opportunity to correct and contradict. The court went on to say that in a sexual harassment complaint, sometimes the complainant may not have courage to depose all that has happened to her at the workplace. There may be an atmosphere restraining free expression of victim’s grievance before the ICC. The privacy and secrecy of such victim is also required to be protected. It is to be noted that verbal cross examination is not the sole criteria to controvert or contradict any statement given by the aggrieved before any authority. Primarily, in a sexual harassment complaint, the ICC has to verify and analyze the capability of the aggrieved to depose before them fearlessly without any intimidation. If ICC is of the view that the aggrieved is a feeble and cannot withstand any cross examination, ICC can adopt such other measures to ensure that the witnesses statement is contradicted or corrected by the delinquent in other manner. The fair opportunity, therefore, has to be understood in the context of atmosphere of free expression of grievance. If ICC 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.
- Fair opportunity should be given to the delinquent in such manner the ICC thinks fit to consider. There is no easy and precise rule defining fair opportunity.
The facts of the case in brief are: A complaint was made by 17 female employees of the Air India- SATS (AI-SATS) against L. S. Sibu (Petitioner) who was working as an Officer -Apron in the Ground Services Department (GSD) of Air India Limited. The Petitioner was of the view that the complaint made was forged because he had made a complaint against officials of Air India before the Central Bureau of Investigation “CBI” and the complaint was just made to wreck vengeance against him. He argued that inquiry was concluded without giving any reasonable opportunity to him to cross examine the complainant and controvert the factual finding of the case. The Airport authority (Respondents) were of the view that the report prepared by ICC was just a preliminary report and had not attained finality and that further disciplinary action would be initiated as per the Rules and Regulations of Air India and the Petitioner would be able to defend his actions then.
Finally, the Court stated that the complaint must be inquired into afresh by a new ICC (to be reconstituted by the Court) and the Petitioner be given full opportunity to defend himself.
– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner POSH at Work