Court: Delhi High Court
Bench: JUSTICE S.P. Garg
Linda Eastwood Vs. Union Of India & Anr. On 23 December 2015
Law Point:
The employer is expected to develop clear and precise procedure to deal with complaints. of sexual harassment in an effective manner – Procedure should be fair and unbiased – It has to be ensured that there is no undue pressure or influence from the senior level.
JUDGEMENT
1. Present Writ Petition under Article 226 of the Constitution of India read with Section 482 of Code of Criminal Procedure has been filed by the petitioner “X” (assumed name). It is contested by the respondents.
2. I have heard the learned counsel for the parties and have examined the file. Undeniably, “X” is employed with M/S.Bridge & Roof Co.(India) Ltd. under the Ministry of Heavy Industries & Public Enterprises and is working in the said institution for the last about 33 years. She lodged a complaint of continued sexual harassment for two years as per the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (in short “the Act”) and filed a complaint before Internal Complaint Committee under Section 4 of the Act (in short “ICC / respondent No.2”).
3. By an Office Order dated 01.09.2011, ICC comprising Mrs. J.Raha (Chairperson), Mrs. L.Alen, Mrs. Janet Anthony, Mrs. Pranati Mondal, and Mrs. Amrita Sen as its members was constituted. By an order dated 17.04.2013, after Mrs. J.Raha”s resignation from the post of “Chairperson” on 15.03.2013, next senior most member of the committee i.e. Mrs. Linda Alen was permitted to act as its “Chairperson”. “X”s complaint against Mr. M.K. Singh was dealt with by ICC. On 20.04.2013, the complainant deposed before the committee in the enquiry held by it. On 20.05.2013 Mrs. Roma Sengupta, Member ICC, visited the company, discussed the matter with 13 individuals including the complainant and alleged offender and came to the opinion that the detailed enquiry was necessary to arrive at a tangible conclusion. The ICC thereafter made a detailed enquiry into the matter and forwarded the report to the employer on 29/31.08.2013. In the meantime Mr. M.K. Singh was given additional charge of CMD by Govt. of India on 30.08.2013. He reconstituted / formed a new ICC on 13.09.2013. The new committee initiated its proceedings on 31.10.2013 on X”s complaint and she was asked to participate in it. She was summoned to appear before the committee on 13.11.2013.
4. The instant writ petition was filed by the petitioner “X” on 12.11.2013. Subsequent to that, during pendency of the writ petition the reconstituted committee vide its comprehensive proceedings conducted on 23.11.2013 unanimously came to the conclusion that “Mr. M.K. Singh has erred in using impolite language to “X” time and again, may be in connection with work related issues only and enabled some undesirable elements to entangle him in such “sexual harassment issues” and to take undue advantage of the situation as he has been implicated in the instant case”. On 28.11.2013, report of the findings of the ICC was sent to the concerned Ministry. By a letter dated 19.12.2013 information / clarification was sought from the Presiding Officer of ICC as the final conclusion arrived at by it was not unambiguous and specific. The Presiding Officer vide her letter dated 27.12.2013 responded to the said letter. Seemingly the findings have since been accepted by the concerned ministry as communicated vide its letter dated 27.02.2014.
5. Record reveals that the first committee deliberated on X”s complaint on 10.05.2013 and decided unanimously to have preliminary investigation into the matter and also to record the statements of the complainant and the accused under appropriate provisions of the “Act”.
The committee in its preliminary investigation found that there was prima facie case made out towards sexual harassment at the workplace against Mr. M.K. Singh. Intimation was sent to both the complainant and the accused under Section 2 (n) (v) of the Act. In its proceedings conducted on 10.07.2013, it was recorded that the complainant had already been transferred to a new department by the management. The committee decided to interrogate the witnesses available at the office. Accordingly, on 10.07.2013 the committee examined Mr. D Adhikari, Mr. S. Chaki, Mrs. Namrata Mehta, Mrs. Pranati Mandal, Mrs. Sabita Mittra, Mr. Prabhat Purkait and Mr. Naskar. Mr. M.K. Singh did not participate in the proceedings. The proceedings further record that upon conclusion of the interrogation of the witnesses, Mrs. Roma Sengupta asked the complainant “X” whether she would consider entering into a settlement with the them were executives of the same company. The complainant sought time to think about that. The committee conducted its enquiry proceedings on 29.07.2013 at 11.00 a.m. Since the accused did not appear, matter was adjourned to 29.08.2013 as “last opportunity”.
6. Mrs. Amrita Sen, member of the ICC, vide order dated 12.08.2013 was transferred to Delhi Office as Deputy Manager (Legal Affairs) from Kolkata office w.e.f. 19.08.2013. Accordingly, she vide her letter dated 14.08.2013 expressed inability to continue as member of the ICC. This transfer, however, was withdrawn and vide letter dated 17.08.2013, Mrs. Amrita Sen was allowed to perform her duties at Kolkata Office. Mrs. Linda Alen, Chairperson, wrote a letter on 23.08.2013 requesting her to continue as member of the committee.
7. In the proceedings conducted on 29.08.2013, only Mrs. Linda Alen, Chairperson and Mrs. Janet Anthony, member, were present. Other members Mrs. Roma Sengupta and Mrs. Pranati Mondal were absent. The accused did not appear before the Committee that day also. At 12.30 hours, the Committee decided to go ex-parte with the remarks “Detailed order reserved”. Minutes of the proceedings recorded on 29.08.2013 bear signatures of Mrs. Linda Alen as Chairperson and Mrs. Janet Anthony as was guilty of committing sexual harassment against the complainant and he should be punished under the provisions of law. It is pertinent to note that this report was signed only by Mrs. Linda Alen, Chairperson. On 31.08.2013, she demitted office on superannuation. She submitted final report to the concerned ministry vide letter dated 31.08.2013. Report was also sent to the Hon”ble President of India vide letter dated 31.08.2013 for information and necessary action. It appears that no action was taken on final report submitted by Mrs. Linda Alen, Chairperson of the Committee.
8. At the outset, it may be mentioned that original record was never made available by the respondents despite specific directions. Vide order dated 03.09.2015 original record pertaining to the first enquiry was directed to produce on 15.09.2015. Mr. Ajay Digpaul, CGSC for respondent No.1 requested “dasti” process to ensure that the original record was available on the next date of hearing. It was, however, not produced that day. On 24.09.2015, the learned Standing Counsel for respondent No.1 informed that original record was not available as it was never received by them. Respondent No.2 also failed to produce the original record.
9. Learned Senior Counsel for the petitioner during the course the findings recorded by the first committee. It was highly objected to by the respondents. It was contended that no cause of action to file the instant writ petition arose in Delhi. The writ petition was bad for non-joinder of necessary party i.e. Mr. M.K. Singh. The findings recorded by the first committee were superseded / reviewed by the second committee.
10. The findings recorded by the first Committee cannot be sustained as the original record pertaining to the said proceedings was not made available to the Court. Besides this, the final report bears signatures only of chairperson of the Committee. It is conspicuously silent as to why the signatures of the other members of the committee were not obtained thereon. There is ambiguity as to when the final report was prepared. It bears signatures of Mrs. Linda Alen with date 31.08.2013. The final proceedings were conducted on 29.08.2013 and at 12.30 hours. The committee had decided to go ex-parte with the remarks “Detailed order reserved”. These proceedings bear signatures of Mrs. Linda Alen, Chairperson and Mrs. Janet Anthony as member. Subsequently, the findings were recorded by Mrs. Linda Alen, Chairperson, and it even does not bear signatures of the other member Mrs. Janet Anthony. This report is dated 29.08.2013. It is unclear as to when the final findings were recorded the final order bears signatures of Mrs. Linda Alen with date 31.08.2013. It is also not clear why the other member Mrs. Janet Anthony, who was present on 29.08.2013 did not sign final report dated 31.08.2013. It also does not record any reason as to why Mrs. Roma Sengupta and Mrs. Pranati Mondal were absent on 29.08.2013. The vacancy that occurred due to resignation of Mrs. Amrita Sen on 14.08.2013 was never filled. Under these circumstances, the final report given only by Mrs. Linda Alen, its Chairperson, on the day of her superannuation cannot be sustained as it did not represent the collective will of the Committee.
11. Mr. M.K. Singh vide order dated 30.08.2013 was given additional charge of CMD. After assuming charge on 02.09.2013, he reconstituted ICC on 13.09.2013. It now comprised of Mrs. Namrata Mehta, as its Presiding Officer; Mrs. Pranati Mandal, Mrs. Subhomoy Chakraborty, Mrs. Sabita Mitra, Mrs. Anita Das and one member from NGO as nominated by ICC (Ms. Roma Sengupta). X”s complaint was dealt with again by the Reconstituted committee. In its proceedings dated 23.11.2013, it was noted that the previous chairperson Mrs. Linda Alen had not handed over any documentation regarding the various meetings held during her tenure. Various correspondences were exchanged to get denied to be in custody of any such original document. This time Mr. M.K. Singh participated in the proceedings before the Reconstituted committee. Vide its comprehensive findings recorded on 23.11.2013, the Reconstituted committee came to the conclusion that report dated 29.08.2013 given by the first committee suffered from deformity. It found that Mr. M.K.Singh had erred in using impolite language to the complainant time and again, may be in connection with work related issues only and enabled some undesirable elements to entangle him in such “sexual harassment issues” and to take undue advantage of the situation. The proceedings were signed by all the members including the Presiding Officer.
12. The findings recorded by the second Reconstituted Committee, in my considered view, cannot be given effect to as the very foundation / constitution of the committee was flawed. The second committee came into existence on 13.09.2013 when the first committee had purportedly submitted its final report to the concerned Ministry on 31.08.2013 and it was pending consideration before it. It is pertinent to note that Mr. M.K.Singh became CMD on 02.09.2013. By his orders on 13.09.2013, the Internal Complaint Committee was reconstituted with the Mr. M.K. Singh. It is relevant to note that both Mrs. Namrata Mehta and Mrs. Sabita Mitra had appeared as witnesses on behalf of the complainant in the proceedings recorded by the previous committee. Apparently, they had conflict of interest and could not have been included in the Internal Complaint Committee as Presiding Officer / Member. Mrs. Roma Sengupta taken as “external member” in the second committee was earlier a member in the first committee and had opted to remain absent on 29.08.2013. She did not sign the final proceedings recorded on 29/31.08.2013. Similarly, Mrs. Pranati Mondal had abstained herself from the proceedings recorded by the previous committee. Apparently, their inclusion in the second committee was motivated as they had declined to remain members in the first committee chaired by Mrs. Linda Alen. The Reconstituted committee in its proceedings conducted on 23.11.2013 took no time to exonerate Mr. M.K. Singh of all serious charges. He was also very prompt to participate in the said proceedings and the committee lost no time to express thanks for his participation in the said proceedings. The Reconstituted committee reviewed the findings recorded by the previous committee. Considering the peculiar facts and circumstances of the case, the findings of the Reconstituted committee are unsustainable as there was develop clear and precise procedures to deal with the complaints of sexual harassment in an effective manner. The procedure should be fair and unbiased. It has to be ensured that there is no undue pressure or influence from senior level. Credentials of the Presiding Officer / members should be absolutely without blemish. The entire investigation should be impartial, independent and without any bias for or against any party. Members of the committee are expected to ensure that no injustice is done.
13. In the instant case, Mr. M.K. Singh against whom there were serious charges of sexual harassment came at the helm of the affairs of the company at the relevant time and was instrumental in selecting the members of the committee of his choice to get a favourable report. Composition of the second committee was, thus, vitiated and flawed. Principles of natural justice were flagrantly violated. Mr. M.K. Singh being a party ought not to have taken active part in the decision of formation / constitution of the Committee. No sanctity can be attached to the proceedings conducted by the Second committee to give a clean chit to Mr. M.K. Singh.
14. Earlier, the respondents had objected to the jurisdiction of arguments learned Senior Counsel for the petitioner and the respondent No.2 were agreeable to the suggestion to conduct a de-novo enquiry by a Reconstituted committee. A consensus was arrived at to reconstitute the ICC. A comprehensive list of the male / female officers as per seniority along with list of NGOs who had agreed to depute a member of the ICC as per provisions of law was furnished before this Court. It was left to the Court to pick up the Presiding Officer / members to reconstitute the committee.
15. Considering the peculiar facts and circumstances, I am also of the considered view that de-novo enquiry is required to be conducted by a Reconstituted committee to impart justice to all. The Reconstituted committee shall be presided over by Mrs. S. Sangmitra, Manager (Design). Other members shall be Mrs. Bhaswati Ray, Deputy Manager (ERP); Mrs. Prachi Tewari, Deputy Manager (Accounts & Finance); Mrs. Kajal Beri, Deputy Manager (Management Accounts) and Mr. Mukul Kumar Sengupta (Manager, Welfare Services). One member from NGO Swyam Kolkata registered with Govt. of India / Govt. of West Bengal shall be associated as “external member”. The reconstituted committee shall start its proceedings within ten days and shall submit its report in a time frame as prescribed under the Act. Mr. M.K. Singh shall not intervene in the proceedings conducted by the committee in any manner and shall disassociate himself from any decision pertaining to the committee.
16. The writ petition stands disposed of in the above terms. Copy of the order be given dasti under the signatures of the Court Master to all the parties.
17. Pending applications also stand disposed of.
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