Recently, in a judgment dated 6th August 2019, the Karnataka High Court in the case of Giridhar Madras v. The Indian Institute of Science and Ors. set aside the inquiry report against a professor and directed the concerned authorities to initiate action against the Director of The Indian Institute of Science (“College”) and members of its internal committee for violating key provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Law”).
Facts: Giridhar Madras (“Petitioner”) filed the writ petition to quash the report of the IC dated February 28, 2018, and the consequential order of compulsory retirement dated October 17, 2018, passed by the College. Petitioner was a Professor in the College and a Guide to Respondent No. 3 (“Complainant”), who was a student. She had certain grouse against the Petitioner relating to alleged sexual harassment while associated with the Petitioner. Therefore, she had given an oral complaint on 10.12.2016 which was recorded in writing by the Internal Committee (“IC”). The IC proceeded to hold a preliminary investigation, and thereafter, a notice was issued to the Petitioner, while not revealing the identity of the Complainant. In this backdrop, on 23.12.2016, a written complaint was filed before the IC by the Complainant. The IC met with Petitioner on 11.01.2017 and orally requested him to provide another response. At this juncture, the Complainant requested the IC not to proceed further with the inquiry, on 20.1.2017.
When things stood thus, the Complainant again filed a complaint with IC stating that she was being ignored by the Petitioner, for work-related matters. Thereafter, the Petitioner was made known the identity of the Complainant – after nearly about 140 days from the receipt of the first complaint. It was further found that there was certain defect in constituting the IC and was thus reconstituted as ICASH (“New IC”). The New IC proceeded to hold an inquiry and submitted an inquiry report, recommending to take action against Petitioner on 28.2.2018, after recording testimonies of 32 witnesses and other documents. A communication was made to the Petitioner along with an inquiry report seeking an explanation after almost 3 months on 02.05.2018 and on 14.09.2018 when the Petitioner requested voluntary retirement. In this backdrop, the Petitioner was retired compulsorily as a measure of penalty, while extending 75% of the admissible pension.
Arguments: The Counsel for Petitioner argued that other than an audio clip containing a conversation held between the Complainant and a witness, no other documents were presented in the inquiry. Further, the first and second statements of witness No. 1 were contradictory to each other. The Complainant had also not produced any material evidence like phone records or transcript of whatsapp messages in order to corroborate her allegations. The Petitioner also brought forth many procedural and timeline lapses on the part of the IC. Some of which are – copy of complaint was not communicated to the accused within 7 days, inquiry report crossed the 90 days period, before imposing punishment of compulsory retirement, he was not issued show cause notice, duly proposing punishment. Also, he was not given a fair opportunity to present his case as Rule 14 of the CCS (CCA) Rules 1965 (“Rules”) which provided that the accused must be given written charges, must be allowed to inspect the documentary evidence, to test oral evidence by cross-examination, and to furnish his own evidence. Further, there was a violation of Sections 16 and 17 (provisions relating to confidentiality) of the Law.
The counsel for the College stated that the allegations against the Petitioner were elaborately analysed and corroborated by witnesses. Also, separate charges need not be formulated since copy of complaint was provided to the Petitioner. The counsel for the College further contend that Rule 14(4) states that the procedure must be followed ‘as far as practicable’, which means the process is flexible based on special situations.
Held: The Court elucidated on the purpose of the Law and at length examined the facts of the case. On the allegation of violation of confidentiality by the new IC and the Director, the Court opined “It is evident that Director and New IC have given statements to the press. Both Director and New IC have not approached the author of news items contending that they have not issued any statement to press. Therefore, prima facie it is evident that both the Director and New IC have committed error in giving statement to the Press and violated the aforesaid provisions. In this regard competent authority is directed to take action in accordance with law for violating Sections 16 & 17 of the Law, after providing ample opportunity to them”
On the issue of procedural inefficiencies regarding inquiry proceedings, the Court held that “Inquiry has been held, only thing it should have been adhered to the provisions for imposition of major penalty under the Rules. New IC as soon as on receipt of complaint should have referred to Disciplinary Authority. Disciplinary Authority should have taken appropriate steps to initiate inquiry under Rules and by framing Articles of charges, statement of imputation, list of documents and list of witnesses while appointing Committee as Inquiry Authority. If a statute prescribed particular manner, it should be carried out only in that manner.
Further the court observed that “Accordingly, Petitioner has made out a case to interfere with the impugned order in not following statutory provisions from the stage of receipt of complaint and not forwarding to Disciplinary Authority. The New IC has committed serious errors in not adhering to the procedures under Rules. Similarly, Disciplinary Authority on receipt of inquiry report should have treated it as preliminary report and proceeded to initiate inquiry under the Rules. Thus due to lapses on the part of New IC and Disciplinary Authority, whole proceedings are vitiated till imposition of penalty.”
The Court further held “In the instant case, due to lack/ignorant of procedure prescribed under Rules, the Law and various official memorandums issued by the Government of India from time to time, New IC and Disciplinary Authority have committed error in not following stipulated provisions, Therefore, it is necessary to have refresher training programme for those New IC Members as well as Disciplinary Authority. In this regard, Government of India/ Disciplinary Authority/ Experts like trained persons should conduct programme to apprise how to conduct inquiry in a sexual harassment case. Department of Personnel & Training is requested to make necessary arrangement for refresher training programme to the Members of New IC and Disciplinary Authorities so as to avoid any procedural/violation statutory rules in conducting inquiry and punishing concerned government servant/employee/student and other staff of the department/organization/institution.”
PAW Comment: Through this Judgment, the Court has elaborated upon the importance of following the proper procedure, while handling any case of sexual harassment. It is pertinent to note that IC Members must be well trained in the Law, rules of natural justice, applicable Service Rules, so that inquiry is conducted properly, without leading to any liability for either the employer or the IC. Similarly, the provisions in Law related to confidentiality must be followed at all times or could lead to strict action, as shown in this case.
– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner POSH at Work