Enquiry Procedure prescribed by Delhi High Court in Sexual Harassment Cases

 Article

Enquiry Procedure prescribed by Delhi High Court in Sexual Harassment Cases

 

The disciplinary authority or the Sexual Harassment internal committee should take note of the judgments passed by the Judicial Courts, from time to time, so that the enquiry reports if challenged meets the requirements of judgements so pronounced. In addition they should also follow the office orders, instructions given by the government and the Central Information Commission, from time to time. Some of the decisions are as under: 

Delhi High Court Judgment: In the matter of Ashok Kumar vs University of Delhi the Delhi High Court has made the following observing:

"Section 11 of the Act provides that where both the parties are employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall he made available to both the parties enabling them to make representation against the findings before the Committee.

Power of the Committee: The power of the ICC is very clear from the Section 15 itself. The Committee can determine the compensation payable by the delinquent to the victim. It is very clear from Sections 11, 13 and 15, the report of the ICC is the determining factor to take follow up action by the employer in accordance with service rules or otherwise.

It is also specifically noted that Section 18 provides an appellate remedy as against the recommendation. This also would show that the conclusive nature of the finding of the fact in the enquiry to be made by the ICC. Thus, it has to be summed up that the enquiry 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 to be taken in terms of Section 13."

Procedure prescribed by Delhi High Court: After so observing, with regard to a sexual harassment complaint, the court prescribed the following procedure:

"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. If the Committee is of the view that the aggrieved is a feeble and cannot withstand any cross examination, the Committee can adopt such other measures to ensure that the witness’s 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 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, the Committee 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." (Emphasis by us) These principles have to bind the present consideration.

How to Proceed:

‘22. Therefore, so far as proceedings before the ICC are concerned, with the consent of all the parties and in consonance with the principles laid down by the Supreme Court in Bidyut Chakraborty (Prof); this court in Bidyut Chakraborty (Prof) and Kerala High Court in L.S. Sibu, it is directed that ICC which is to proceed in terms of the judgment dated 16th February, 2017, shall proceed in the following manner:

(i) The inquiry in the three complaints made by the respondents’ no.3 to 5 shall begin within two weeks from today from the stage of cross-examination of the complainant's witnesses whose examination-in-chief has been tendered in writing to the previous ICC.

(ii) The ICC shall intimate the appellant and the respondents’ no.3 to 5 in writing as well as by e-mail of the date and time of its proceedings.

(iii) The appellant would be allowed to cross-examine the witnesses of the complainant through a questionnaire which would be submitted to the ICC at the time when the witnesses are produced for their cross-examination.

(iv) The witnesses would be called one by one by the ICC to answer the questionnaire which is put to them. Witnesses would answer questionnaire in the presence of the Committee. Every effort shall be made by the ICC to complete the testimony of a single witness the very day on which the recording of the witness cross-examination commences.

(v) So far as witnesses who are common to several complaints are concerned, such common witness shall be cross-examined in one go when the witness appears before the ICC, in respect of all the complaints in which he/she is a witness.

(vi) The appellant and the complainant would not be present at the time when the cross-examination of the witnesses of the complainant is being recorded.

(viii) The ICC shall endeavour to ensure that the witnesses who are being cross-examined, does not confabulate with the witnesses who are yet to be cross-examined.

(ix) The ICC shall make every endeavour to supply a copy of the cross-examination of the complainants' witnesses to the appellant on the date on which the cross-examination at the earliest, in any case before cross-examination of the next witness.

(x) After completion of the cross-examination of the complainants' witnesses, the appellant would be permitted to lead defence evidence. The appellant shall submit the examination-in-chief of the defence witnesses to the ICC in writing within one week of completion of the cross-examination of the complainant's witness. Copies of the statements of the appellant's witnesses would immediately be made available to respondents’ no.3 to 5.

(xi) The procedure set out above for cross-examination of the witnesses of the complainant would be followed in identical terms so far as cross-examination of the appellant's witnesses by the respondent’s no.3 to 5.

(xii) We need not to emphasize that the proceedings have to be expeditiously concluded. In the event any representation is made by the complainant under Section 12 of the enactment for any interim redressal, the same would be expeditiously decided by the ICC, preferably within one week of the representation.

(xiii) After completion of the cross-examination of the witnesses of the appellant, parties shall be given a personal hearing by the ICC.

(xiv) After consideration of recording of the inquiry and the submissions made by the parties, the ICC shall submit separate reports on each complaint along with their recommendations to the Competent Authority which is the Governing Body of the respondent no.2 within 3 days of the conclusion of the submissions.

(xv) For reasons of expediency, it is directed that the above procedure shall be strictly abided by the ICC.

(xvi) We also deem it necessary to direct that in any case any vacancy in Constitution of the ICC occurs, the same shall be filled within one week from the date when it has arisen. It is made clear that in such eventuality, the inquiry shall resume from the stage on which the erstwhile member of the ICC had left the Committee.

(xvii) It is directed that ICC shall complete the above exercise within a total period of three months from today.

(xviii) In view of the above, while maintaining the order of the ld. Single Judge so far as findings recorded in para 8 of the judgment dated 16th February, 2017 is concerned, we hereby set aside the directions made in paras 11 and 12 which shall stand substituted by the directions recorded in para 22 hereinabove.’