Madras High Court: In a writ petition filed challenging the enquiry report submitted by the Internal Complaints Committee (‘ICC’), wherein the ICC has recommended that the accused for being accused of sexual harassment should be continued under suspension, till the completion of the departmental proceedings, D. Bharatha Chakravarthy, J. while setting aside the impugned inquiry report, has allowed the petition on the following terms:
Proceedings of the ICC including the statements recorded so far, questions which were put to the witnesses and their version, and questioning of the accused shall all hold good.
ICC was directed to continue with the enquiry.
Accused was directed to appear before the committee and among all the witnesses who are already examined, the accused was allowed to indicate the names of the witnesses whom he would prefer to cross-examine, and such witness were directed to be re-summoned by the committee for cross-examination.
If the petitioner fails to cross-examine the witnesses on such date fixed by the ICC, the petitioner will forfeit his right to cross-examine the particular witness.
If ICC thinks the victims need not be exposed directly before the delinquent, then the victims can be protected by a screen and answer the questions. The accused can prepare a list of questions and the questions can be administered by any other employee who may not be the rank higher than that of the accused. If the accused is unable to make such a choice, such questions can be administered by the ICC itself to the victims.
Petitioner could examine the witnesses he had already examined on his part, and if he chooses to examine any other witnesses, he can also do the same.
ICC was directed to complete the entire exercise within 60 days and shall make every endeavour to complete the proceedings before 31-08-2024.
Upon receipt of the enquiry report by the ICC, the disciplinary authority was directed to take further steps to complete the disciplinary proceedings, as if it received the enquiry report pursuant to the charge memorandum under 17 (b) of the Rules, within a period of four weeks therefrom. Further, if the disciplinary authority believes a punishment must be imposed on the delinquent, then issue a second show cause notice and a decision should be arrived only after hearing the accused.
Issues, Analysis and Decision:
(i) Whether or not the impugned enquiry report is liable to be quashed, as the complaint is beyond six months and hence violative of Section of the (‘POSH Act’)?
The Court noted that as per the complaint by the victim, it is stated that the accused would frequently call her and would make sexually coloured conversations with her. Upon being counselled by the employer, in 2022 she opened and came up with the serious allegations that during April 2018 the accused came to her house in the morning and forcibly had sexual intercourse. She was unable to disclose it to anybody. She was afraid that her son would come to know about the same.
The Court remarked that “when the offence is a serious one having the effect of causing grave mental trauma and stress to the victim, pushing her to a dilemma not to reveal or complain due to the fear of secondary and tertiary victimization, on the other hand, she is also unable to withstand, swallow or suppress the same, then that state of the victim fits the definition of undergoing continuous sexual harassment”.
The Court further said that the injury is not complete just by the forcible physical intercourse. The injury adds up every day when the victim is thereafter made to silently keep quiet and face the accused at the workplace.
The Court said that the instant case is not an isolated incident of misconduct such as passing lewd remarks or inappropriate touching etc, as in cases of serious allegations such as rape or continuous molestation or harassment, the same would be a continuing misconduct and every day until the situation is redressed or brought to the notice of the appropriate authority would give rise to a fresh cause of action. Thus, the Court rejected the submissions of the accused that merely because the incident happened in the year 2018, the complaint cannot be entertained by the local committee in the year 2022.
The Court also noted that the allegations made against the accused are that he is a serial predator, and during the enquiry, two other victims have deposed about the sexual harassment meted out to them.
The Court took note of Union of India v. Dilip Paul, and Union of India v. Mudrika Singh, , wherein it was held that the Court should not get swayed by discrepancies and hyper technicalities while considering the cases relating to sexual harassment and the overall fairness of the enquiry should be considered regarding any procedural violation which is complained of.
Thus, the Court held that the complaint is not barred by limitation and as such is not violating Section 9 of the POSH Act.
Further, concerning the contentions of the accused regarding non-supplying the complaint within the time frame, not acting upon the report within the time frame etc., the Court said that these are only timelines intended to ensure prompt action and are not grounds for the delinquent to wriggle out of punishment or stall the very inquiry itself. The accused has to defend the charges in the inquiry on merits.
(ii) Whether or not, the impugned report is liable to be quashed for violation of principles of natural justice?
The Court said that it cannot be said that the entire action of the ICC in recording the statements was violative of principles of natural justice, but in respect of the witnesses who are not examined on behalf of the accused, but on behalf of the prosecution to establish the charges, an opportunity needs to be given to the accused to cross-examine the witnesses.
The Court further added that though the committee may be right in not exposing the victims directly to the accused, at least, the cross-examination should be done based on the questions that are prepared by him. Such questions depending on the witness’s nature should be put before the witnesses directly by the delinquent.
Thus, the Court held that the impugned enquiry report would stand partially vitiated for the flaw of not providing the accused an opportunity to cross-examine the witnesses.
[R. Mohanakrishnan v Deputy Inspector General of Police, W.P.No.10707 of 2024, Order dated 11-06-2024]
Advocates who appeared in this case :
For the petitioner: Advocate .S.Sivakumar
For the respondents : Additional Government Pleader Stalin Abhimanyu
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