L.s. Sibu V.

Air India Limited And Others

High Court Of Kerala

Judgment Date:
08-04-2016

L.s. Sibu ..Petitioner

Air India Limited And Others ..Respondent

Bench:
{HON'BLE JUSTICE A. MUHAMED MUSTAQUE, J. }

Citation:

2016 (3) JCC 2077 ; 2016 (2) KLT 374 ; 2016 (2) KLJ 434 ; [2016 (150) FLR 488]
; 2016 (2) KHC 569 ; ILR 2016 (2) KERALA 591 ; 2016 (3) RCR (CRIMINAL) 406 ;
2016 (3) RCR (CIVIL) 571 ; 2016 (3) SCT 141 ;

A. Muhamed Mustaque, J.—1. A question regarding the compliance of principles of natural justice has arisen in
this writ petition in the context of an enquiry conducted by the Internal Complaints Committee (ICC) constituted
under the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013
(hereinafter referred to as 'Act 14 of 2013').

2. In view of the legal question that is involved in this writ petition, this Court is only addressing the legal issue
bereft of facts involved.

3. The petitioner is working as an Officer-Apron in the Ground Services Department (GSD) of Air India Limited,
Thiruvananthapuram. The ICC of Air India Limited, Southern Region received a complaint forwarded by the
Airport Director. This complaint alleged to have been raised by 17 lady employees' of Air India-SATS (AI-SATS), a
joint venture company of Air India and Singapore Air Transport Services Limited. The Committee conducted an
enquiry against the petitioner based on the complaint. The report of the Committee is produced as Ext.P23. The
issue in this writ petition is revolved around the validity of the enquiry report, on the ground of non compliance
of principles of natural justice.

4. The case of the petitioner is that he was not given any opportunity in the matter and complaint as referred in
the ICC is a forged one by some officials of the joint venture company and some of the officers of the Air India
to wreck vengeance against the petitioner for having filed a complaint before the Central Bureau of Investigation

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(CBI). Therefore, the enquiry concluded without giving an opportunity to the petitioner to cross examine the
complainant and to controvert the factual finding in the enquiry report, is vitiated.

5. The stand of the Airport Authority is that the report is a preliminary report to find the involvement of the
petitioner in sexual harassment as raised in the complaint. It is contended that when a prima facie case is made
out based on the report, further disciplinary action would be initiated as per the Rules and Regulations of the Air
India and therefore, the petitioner can defend any action proposed in such proceedings. It is further contended
that on account of the secrecy and privacy required in conducting such an enquiry and to give full freedom to
the complainant to depose before the Committee, an enquiry was conducted respecting dignity of the complainant
and also in a fair manner. The respondents also relied on the Government of India Office Memorandum dated
16.07.2015 to justify the procedure followed in the matter. To sum up the defence of the respondents is that the
report now prepared is only a preliminary enquiry report to signal the management to proceed further as against
the petitioner for the misconduct based on the sexual harassment.

6. As seen from the pleadings and reports, the stand taken up the Air India as well as ICC before this Court is
that an enquiry regarding misconduct on sexual harassment has not attained finality and it can be proved or
disproved in the disciplinary proceedings if any initiated by the management based on the report.

7. Act 14 of 2013 was enacted to provide protection against the sexual harassment of women at work place and
also for redressal of the complaint of sexual harassment. The preamble of the Act 14 of 2013 is as follows:

"An act to provide protection against sexual harassment of women at workplace and for the prevention and
redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto."

8. Therefore, the provisions in the Act has to be understood in the light of preamble as above. Section 4 Chapter
2 refers to the constitution of the Internal Committee, the composition of the members is by nomination by the
employer. The Presiding Officer of the Committee shall be women employed as senior level at the work place.
Section 9 of Chapter 4 provides for procedure of raising complaint by aggrieved women. Any aggrieved women in
terms of Section 9 is free to raise complaint in writing before the Committee. Section 11 provides for a manner
in which an enquiry has to be conducted based on the complaint. It is appropriate to refer the relevant portion
of Section 11 of the Act 14 of 2013 is as follows:

"11. Inquiry into complaint (1) Subject to the provisions of Section 10, the Internal Committee or the Local
Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the
complaint in accordance with the provisions of the service rules applicable to the respondent and where no such
rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if
prima facie case, exist, forward the complaint to the police, within a period of seven days for registering the case
under Section 509 of the Indian Penal Code, and any other relevant provisions of the said Code where
applicable:"

9. This would show that if the respondent in the complaint is an employee, the enquiry of the complaint shall be
made in accordance with the service rules applicable. Sub-section 3 of Section 11 also gives the Committee the
same powers vested in a civil court under the Code of Civil Procedure, 1908 in respect of certain matters
referred therein like summoning witnesses, discoveries etc. Section 13 in this case is relevant as far as to find
the nature of the report prepared now. Section 13 provides as follows:

"13. Inquiry report. (1) On the completion of an inquiry under this Act, the Internal Committee or the Local
Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be,
the District Officer within a period often days from the date of completion of the inquiry and such report be
made available to the concerned parties.

(2) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the
allegation against the respondent has not been proved, it shall recommend to the employer and the District

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Officer that no action is required to be taken in the matter.

(3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the
allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as
the case may be--

(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules
applicable to the respondent or where no such service rules have been made, in such manner as may be
prescribed;

(ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or
wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her
legal heirs, as it may determine, in accordance with the provisions of section 15: Provided that in case the
employer is unable to make such deduction from the salary of the respondent due to his being absent from duty
or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman:

Provided further that in case the respondent fails to pay the sum referred to in clause (ii), the Internal
Committee or, as the case may be, the Local Committee may forward the order for recovery of the sum as an
arrear of land revenue to the concerned District Officer."

10. Section 13 read with Section 11 clearly indicates the enquiry to be concluded under Section 13 is not a
preliminary enquiry contended by the respondents but it should be a full fledged enquiry as to the finding of fact.
This is so clear from Section 13(3)(i). The enquiry that has to be conducted by ICC in same manner to prove
misconduct in disciplinary proceedings as referable in Service Rules, if no Service Rules exist in such manner,
domestic enquiry is conducted.

11. The status of the Committee, therefore, deemed to be an Inquiry Committee for disciplinary action under the
service rules (See order of the Hon'ble Supreme Court in Medha Kotwal Lele v. Union of India [, 2013(1) SCC
311]. Thus when the enquiry is concluded, what is left to the discretion of the employer to take action in
accordance with service rules for the proven misconduct. If the Central Civil Services (Classification, Control and
Appeal) Rules would apply, the starting point of action referred in Section 13(3) of the Act 14/2013 is from the
proceedings under Rule 15 of Part IV of the above rules. Thus, 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.

12. The power of the ICC is also very clear from the Section 15 itself. The Committee can also determine the
compensation payable by the delinquent to the victim. Thus, 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.

13. In the background of legal provisions as above, every Internal Committee constituted under the Act 14 of
2013 necessarily, has to follow the principles of natural justice in conducting their enquiry. The rules framed
under the Act 14 of 2013 also would indicate that the Committee shall follow the principles of natural justice
[See the Rule 7(4)]. 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.

14. Therefore, the next question is, in what manner the principles of natural justice have to be secured in the
enquiry conducted in a complaint relating to the sexual harassment. This is a delicate question to be addressed
by the Committee itself. The natural justice has got elasticity and would depend upon the context in which it is
referred.

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15. The Hon'ble Supreme Court in Dev Dutt v. Union of India [, 2008 (8) SCC 725 ] observed on principles of
natural justice is as follows:

"What is natural justice? The rules of natural justice are not codified nor are they unvarying in all situations,
rather they are flexible. They may, however, be summarised in one word: fairness. In other words, what they
require is fairness by the authority concerned. Of course, what is fair would depend on situation and context."

16. Lord Denning in B. Surinder Singh Kanda v. Government of the Federation of Malaya [1962 AC 322] observed
as follows:

"If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the
accused man to know the case which is made against him. He must know what evidence has been given and
what statements have been made affecting him: and then he must be given a fair opportunity to correct or
contradict them."

17. 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. 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 before any authority. 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 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 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.

18. What is reminded here by this Court to the Committee is that a fair opportunity should be given to the
delinquent in such manner the Committee think fit to consider. There is no easy and precise rule defining fair
opportunity.

19. The Office Memorandum cannot supersede the statutory provisions. The statutory provisions are very clear in
what manner this enquiry has to be conducted and concluded.

In view of the above, the impugned report is set aside. The ICC is directed to reconsider the matter after giving
fullest opportunity to the petitioner.

The writ petition is disposed of as above.

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