For attention of the members of
Internal
Complaint Committee
Brilliant Guidance Note by Senior Advocate Shri H L KUMAR - LLR
Socrates, the Greek philosopher, famously counted the
four essential qualities of a judge by saying that “four things belong to the
judge: to hear courteously, to answer wisely, to consider soberly and to decide
impartially”. However, merely providing the powers of civil court sans
procedure and exhaustive rules, it cannot be expected that internal complaint committee
will be able to hold inquiries without mistakes and flaws and even depressing
pitfalls. The civil courts as presided over by judges to hold the
inquiries. Thus the internal complaint committee members have to decide
the complaints with utmost prudent, wisdom and precautions so that the justice
should not only be done but should appear that it is being done.
Section 4 of the Sexual Harassment of Women at
Workplace (Prevention, Prohibition & Redressal) Act, 2013, hereinafter
referred to as POSH Act, provides ‘Constitution of Internal Complaints
Committee’.1 Sub-section (1) of section 4 of the Act provides that every
employer of a workplace shall, by an order in writing, constitute a Committee
to be known as the ‘Internal Complaint Committee’. Provided that where
the offices or administrative units of the workplace are located at different
places or divisional or sub-divisional level, the Internal Committee shall be
constituted at all administrative units or offices.
The Presiding Officer and the other member of the
Internal Complaint Committee as constituted under Sexual Harassment of Women at
Workplace (PP&R) Act, 2013 (hereinafter referred to as Act) are vested with
the powers of a Court by virtue of sub-section (3) of section 11 of the Act inter alia providing that
for the purpose of holding of an inquiry under its sub-section (1) the Internal
Committee “shall have the same powers as are vested in a civil court under the
Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the
following matters, namely:-
(a) summoning and enforcing the
attendance of any person and examining him on oath;
(b) requiring the discovery and
production of documents; and
(c) any other matter which may be
prescribed.
The above powers are the prerogative of a judge.
Vested with identical powers, the Bombay High Court in E.S. Sanjeeva Rao vs.
CBI has held that passing an order a Regional Provident Fund Commissioner is a
judge as defined by the Judges (Protection) Act, 1985 thus immune to the criminal
case against his or her orders.
There is no mandatory requirement that the Internal
Committee should have one external member who should have a legal/judicial
background. This has also been held by the Rajasthan High Court that bembers
are nominated from different departments of the establishment with little or no
qualifications, experience or training whatsoever in handling such
complaints. The appearance of lawyers is specifically barred. Their
contribution by adjudication of a suit is remarkable. The inquiry reports
are in fact half baked and prima facied flawed. Such inquiry reports are
challenged in the High Courts under Article 226 of the Constitution of India,
and many reports are set aside for not following the due process of natural justice.
Prima facie, it appears to be a fundamental design defect in the Act.2
Socrates, the Greek philosopher, famously counted the
four essential qualities of a judge by saying that ”four things belong to
the judge: to hear courteously, to answer wisely, to consider soberly and to
decide impartially”. However, merely providing the powers of Civil
Court sans procedure and exhaustive rules, it cannot be expected that Internal
Complaint Committee will be able to hold enquiries without mistakes and flaws
and even depressing pitfalls. The Civil Courts as presided over by judges
to hold the inquiry in accordance with Code of Civil Procedure, 1908 which has
over 168 sections supported with nearly 675 rules, orders and sub-orders and
provisions whereas the Sexual Harassment of Women at Workplace (PP&R) Act
has only one rule with seven sub-rules under the caption ‘Manner of inquiry
into complaint’. Thus the Internal Complaint Committee members have to
decide the complaints with utmost prudent, wisdom and precautions so that the
justice should not only be done but should appear that it is being done.
The Internal Committee deals with the lives of two individuals and mishandling
the proceedings and faulty finding could ruin the career and family life of a
man and sometimes even the viction whose grievances are not redressed.
Also the findings and recommendation of the Internal Committee is binding on
the employer. Ideally, a retired judge of a District Court (or High Court)
should be the Presiding Officer.
The subject matter pertaining to hearing and
determination of a complaint by the ‘aggrieved woman’ is more sensitive than
many other court cases. The task of the Committee as constituted under
the Act is much more important and needs every care and caution. Precautions
are to be aken in the absence of detailed procedure for holding of inquiry and
disposal of complaints.
Principles of Natural Justice
As provided by sub-section 4 of section 7 of the Act,
the Complaint Committee shall make the inquiry into the complaint in accordance
with the principle of natural justice. Such principles of ‘natural
justice’ are also nowhere defined in any enactment. Culling from various
judgments of Supreme Court and High Courts, the principles of natural justice
are those rules which have been laid down by the courts as being the minimum
protection of the rights of the individual against the arbitrary procedure that
may be adopted by a judicial or quasi-judicial authority while making an order
affecting those rights. These rules are intended to prevent such
authority from doing injustice. These principles are now well-settled and
are four in number :
- That every person whose civil rights are affected
must have a reasonable notice of the case he has to meet.
- That he must have reasonable opportunity of being
heard in his defence.
- That the hearing must be by an impartial
tribunal, i.e. a person who is neither directly or indirectly a party to
the case. Nemo
debet esee judex in propria causa –i.e., one who has an
interest in the litigation is already biased against the party concerned.
- That the authority must act in good faith, and
not arbitrarily but reasonably.
Rule 7(4) of the Sexual Harassment of Women at
Workplace (Prevention, Prohibition & Redressal) Rules, 2013 provides that the Internal Committee is required to adhere to the “principles of natural
justice” while making the inquiry . Both the parties, the aggrieved woman and
the respondent, must be given a fair opportunity to present their respective
cases, and the respondent should be allowed to cross-examine the witnesses of
the complainant.
The principles of natural justice are those rules
which have been laid down by the courts as being the minimum protection of the
rights of the individual against the arbitrary procedure that may be adopted by
a judicial or quasi-judicial authority while making an order affecting those
rights. These rules are intended to prevent such authority from doing
injustice.
The concept of natural justice had undergone a great
deal of change in recent years. Rules of natural justice are not rules embodied
always expressly in a statute or in rules famed thereunder. They may be implied
from the nature of the duty to be performed under a statute. What particular
rule of natural justice should be implied and what its context should be in a
given case must depend, to a great extent, on the facts and circumstances of
that case, the framework of the statute under which the enquiry is held. The
old distinction between a judicial act and an administrative act has withered
away. Even an administrative order which involves civil consequences must be
consistent with the rules of natural justice. The first and foremost principle
is what is commonly known as audi
alteram partem rule. It says that no one should be condemned unheard.
Notice is the first limb of this principle. It must be precise and unambiguous.
Over the years by a process of judicial interpretation two rules have been
evolved as representing the principles of natural justice in judicial process,
including quasi-judicial and administrative process. They constitute the basic
elements of a fair hearing, having their roots in the innate sense of man for
fair play and justice which is not the preserve of any particular race or
country, but is shared in common by all men.
It has been held by Delhi High Court that the Internal
Committee constituted under the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013, is to ensure that
while conducting inquiry, the compliance of principles of natural justice has
been properly effected thereby creating confidence in concerned parties,
particularly in the complainant that she becomes fully sure that nothing would
be unfair to her interest. Internal Committee is to provide proper
hearing to the complainant so that she may establish her version.
Non-appointing an independent and impartial member from non-governmental
organization, of the Internal Committee, is not proper being in violation of
principles of natural justice.3
The fundamental principle 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. In sexual harassment complaint, sometimes the complainant may not
have courage to depose all that has happened to her at the work place. There
may be an atmosphere restraining free expression of victim’s grievance before the
Committee. The privacy and secrecy of such victims 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 woman
before any authority. Primarily, in a sexual harassment complaint, the Internal
Complaints Committee has to verify and analyse the capability of the aggrieved
to depose before them fearlessly without any intimidation. The Kerala High
Court has held that if the Internal Complaints Committee is of the view that
the aggrieved is a feeble person and cannot withstand any cross-examination, the
Internal Complaints Committee 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 the Internal Complaints
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.4
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