Sexual Harassment of Women at Work Place - Guidelines

Every Internal Complaints Committee constituted under the provisions of Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 has to follow the principles of Natural Justice in conducting their enquiry, said the Court. Kerala High Court in L.S Shibu v Air India Limited &others has held that every internal complaints committee constituted under the provisions of Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 has to follow the principles of natural justice in conducting their enquiry. A complaint alleging sexual harassment was leveled against the petitioner.The copy of the enquiry report was not given to the petitioner. The respondent Air India took a contention that when a prima facie case is made out against the petitioner based on the report , he could have right to challenge /defend himself in the disciplinary proceedings initiated subsequently. In other words , the respondents contended that report now prepared is only a precursor to enable the management to proceed on the allegation of sexual harassment against the petitioner in this regard. They also relied on an official memorandum issued in this regard. It was further averred that the petitioner could prove his innocence before the disciplinary committee constituted subsequent to the report. Justice Muhammed Mustaque on a granular analysis of the provisions of the act held that every Internal Committee constituted under the Act and Rules necessarily had to follow the principles of natural justice in conducting their enquiry. It was further opined that the concept of natural justice has got elasticity and would depend upon the context in which it is referred. The court thereafter went upon to delve into the procedure to be followed by the committee in dealing with a complaint relating to sexual harassment. The bench expressed its understanding of the law in the following lines:-“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.” Justice Mustaque further observed that in a complaint involving sexual harassment , the committee should give a fair opportunity to the delinquent in such manner as it thinks fit, even though there is no precise rule defining fair opportunity. The court thereafter set aside the enquiry report prepared by the internal complaints committee holding the same as not in accordance with the statutory provisions. It also observed that no official memorandum issued by any authority to the contrary cannot have any superseding effect on the provisions of the act.