Can Procedural Issues Derail the POSH Complaint…

By Anuradha Gandhi and Surbhi Gandotra

A recent judgment by an Hon’ble Court against a premier technical institute underscores the critical importance of adhering to legal procedures while addressing complaints of sexual harassment. The case revolves around the complaints of sexual harassment and the subsequent procedural lapses in handling the complaint.

The dispute stemmed from a complaints filed by a Ph.D. scholar, leading to an inquiry and subsequent disciplinary action against the Professor (hereinafter to be called as Respondent). However, the court’s ruling overturned the penalty and directed the institute to reinstate the Professor (Respondent).

This case highlights critical issues surrounding workplaces sexual harassment policies and procedural fairness in disciplinary actions. It serves as a significant precedent in addressing institutional responses to address sexual harassment complaints made prior to the enactment of the POSH Act.

Background of the Case

The dispute began when a Ph.D. scholar filed a complaint with the institute, expressing concerns and requesting a change of Supervisor. This led to the formation of a Fact-Finding Committee (a preliminary committee), which submitted its report after interacting with the complainant i.e. an ex-parte report.

The Sexual Harassment Complaints Committee (SHCC) reviewed the report submitted by the Fact-Finding Committee and observed that, during the investigation of the first complaint, another complaint referencing a 2004 incident was received against the same professor. In light of this, the SHCC, relying completely upon the report of the preliminary committee, issued a notice to the respondent, for initiating an inquiry into the first complaint.

Based on the findings, the institute imposed penalty of compulsory retirement on the Respondent. However, the professor challenged the decision in court, arguing procedural lapses.

The complaint was registered and the inquiring committee held the respondent guilty before the enactment of the POSH Act, The POSH Act, 2013 was then enacted and the Respondent

The Hon’ble Court ultimately ruled in favor of the professor, setting aside the disciplinary action and directing the Institution to reinstate him. This case underscores the complexities of workplace sexual harassment policies, the procedural fairness of institutional inquiries, and the judicial review of the disciplinary actions.

First Writ Petition Filed by the Respondent Challenging the Denial of His Right to be heard (Prior to enactment of POSH Act)

The respondent’s counsel stated that the petitioner shall be given a full opportunity to be heard and present his case before the disciplinary authority (Board of Governors) and the authority shall reconsider the Inquiry report.

The petitioner is directed to appear before the disciplinary authority and submit all relevant material a week prior to the hearing. The petition is thus disposed of, with liberty to apply if necessary.

It was then revealed that, contrary to the counsel’s statement, during the hearing of the writ petition, the authority had already decided on the inquiry report and held him guilty.

The Opportunity to be heard (Prior to enactment of POSH Act)

A Single Judge directed the decision of the disciplinary authority shall be quashed and ensured that the respondent was given a fair hearing by the authority. The authority conducted a special meeting, where the respondent submitted a written representation and presented his case. After deliberations, the authority again found the charges proven and decided to impose penalty, issuing a show-cause notice.

The Dismissal Order (Prior to enactment of POSH Act)

The authority then imposed ‘compulsory retirement’ as a major penalty, formalized in an order, issued to the respondent stating effective immediately.

Second Writ Petition by the Respondent Challenging the Penalty Imposed upon him (Post enactment of POSH Act)

The respondent filed Writ Petition challenging the penalty of compulsory retirement, which was disposed of by the court directing him to pursue his appellate remedy.

An appeal was preferred by the respondent which was again dismissed by the visitor of the institute.

Third Writ Petition by the Respondent (Post enactment of POSH Act)

The respondent filed Writ Petition against the penalty imposed upon him of ‘compulsory retirement’ and the dismissal of his appeal. The court took the matter and ultimately ruled in favor of the professor, setting aside the disciplinary action and directing the Institution to reinstate him.

Appeal against the Order of Reinstatement (Post enactment of POSH Act)

The Technical Institute appealed against the order stating to ‘set aside the penalty of compulsory retirement’.

Contentions of the Appellant:

• The appellant argued that the inquiry against the respondent complied with Rule 14 of the CCS (CCA) Rules, 1965, and was based on the SHCC’s recommendation.
• The respondent had requested an open inquiry and participated on multiple occasions, undermining claims of irregularity.
• The respondent’s non-participation in the inquiry negated claims of denial of natural justice.
• Additionally, it was stated that judicial review should focus on the decision-making process and not the factual findings of the inquiry, and the judgment under review was inconsistent with the law and required overturning.

Arguments of the Respondent:

• The respondent argued that the SHCC improperly delegated the inquiry and completely relied upon the ex-parte report of the preliminary fact finding committee, violating the Vishaka guidelines and POSH Act, and failed to consider his submissions despite multiple remainders.
• He claimed disciplinary action was invalid without a proper SHCC inquiry. He emphasized that the disciplinary authority must personally review the charge-sheet and the findings.
• He argued that his defense statement was ignored, and essential documents including report of preliminary committee, evidences including the SMS/emails forwarded by the complainant to support her allegations, were not provided, causing prejudice.
• The Board of Inquiry’s observations on document verification and the disciplinary authorities’ mechanical handling were highlighted as procedural lapses.
• The respondent supported the Single Judge’s decision to set aside the orders of compulsory retirement, arguing it required no interference.

Since the complaint of sexual harassment was filed prior to the enactment of the POSH Act, 2013, the technical institute in the present case is required to follow the procedures outlined in the Vishakha Guidelines and the CCS (CCA) Rules, 1965.

Below is a comparative study summarizing the procedures applicable to handling such cases before the enactment of the POSH Act.

Judicial Rationale behind the Court’s Decision

The Court found merit in the respondent’s claims of procedural lapses in the inquiry process. Referring to the Vishaka v. State of Rajasthan (1997) judgment, it emphasized the mandatory requirement to form a Complaints Committee, led by a woman, with at least half its members being women, including an external member, as per Article 141 of the Constitution of India.

In the Medha Kotwal Lele case, the Hon’ble Supreme Court clarified that a Complaints Committee, as outlined in the Vishaka judgment, would act as the inquiry authority for sexual harassment cases under the CCS CCA Rules, 1965.

“A proviso was added to Rule 14 of the CCS (CCA) Rules in 2004, confirming that the Complaints Committee would be deemed the inquiring authority for such complaints”.[9]

In Medha Kotwal Lele v. Union of India (2013), the Supreme Court emphasized that the Vishaka guidelines must be effectively implemented. It directed “States and Union Territories to amend their Civil Services Conduct Rules within two months, ensuring that Complaints Committee reports on sexual harassment are treated as inquiry reports in disciplinary actions”.

In Aureliano Fernandes v. State of Goa and Others (2023), the Supreme Court addressed a similar case where a sexual harassment complaint, initially reviewed by the concerned Committee, was later subjected to an inquiry by a former Bombay High Court Judge. The mandate of the Inquiry Officer was withdrawn based on the Medha Kotwal ruling, which clarified that the Complaints Committee’s report under Vishaka guidelines is considered the inquiry report under CCS (CCA) Rules and binding for disciplinary actions. The Supreme Court criticized the Executive Council’s error in treating the First Committee as a fact-finding body and initiating a separate inquiry, contrary to established directives.

In State of Uttar Pradesh v. Saroj Kumar Sinha (2010), the Supreme Court reaffirmed the principle that a government employee facing a departmental inquiry must be provided all relevant documents, statements, and materials for a fair opportunity to defend against charges. It emphasized that withholding such documents prejudices the defense and violates established legal norms.

• A reasonable opportunity to defend means a government servant must be allowed to review the charge-sheet made against him[10], contest charges, deny guilt, and prove innocence. This includes being informed of the charges, cross-examining witnesses, and accessing prior statements to ensure effective defense.
• Denying a government servant access to witness statements used in the inquiry is unjust, as a synopsis does not provide a fair opportunity to contest the charges or defend effectively.
• The counsel for the appellant argued that the respondent’s failure to reply to the show-cause notice justified the removal order. However, the Court rejected this, stating that the first inquiry report was flawed and ex-parte and the SHCC merely repeated it.
• The lack of necessary document supply denied the respondent a fair chance to defend. The Court held that the appellants misconstrued previous High Court directions and failed to comply, resulting in a miscarriage of justice and denying the respondent a reasonable opportunity in the inquiry proceedings.
• The appellants failed to provide a valid explanation for not supplying the documents to the respondent, leading the High Court’s Division Bench to rightly set aside the removal order.
• The Court upheld the Single Judge’s judgment, allowing the Institute to conduct a fresh inquiry following the Vishaka guidelines and Section 11 of the POSH Act, 2013, emphasizing that this decision was based solely on procedural lapses, not on the merits of the allegations.

The court’s decision in the present case highlights the significance of adhering to established legal procedures in disciplinary inquiries. The disciplinary authority in the present case failed to conduct the inquiry in accordance with the applicable rules i.e. CCS CCA Rule, 1965, leading to procedural lapses that compromised fairness in the process. Consequently, the court found the disciplinary action against the professor (respondent) unjustified and ordered his reinstatement.

This case underscores the critical need for institutions to follow procedures while handling workplace sexual harassment complaints. Ensuring procedural integrity is not only essential for protecting individual rights but also for fostering a safe, transparent, and an inclusive work environment. Strict adherence to the law, safeguards both the parties, reinforcing trust in institutional mechanisms for addressing such sensitive matters.

The present case has set a precedent emphasizing the primacy of procedural compliances. The neglect to the established rule of law can lead to prolonged trials and delays in justice.

Annexure- I

Timeline of the case for reference:

• January 22, 2013: A sexual harassment complaint filed to Director of a Technical Institution.
• February 13, 2013: The fact-finding committee submitted its report.
• February 26, 2013: The Sexual Harassment Complaints Committee (SHCC) reviewed and relied on the report of  fact-finding committee, another complaint from January 30, 2013 referencing a 2004 incident was received.
• Reply from respondent on March 22, 2013, countering the allegations.
• March 25, 2013: allegations were prima facie established, a charge sheet to be served within 15 days upon approval by the disciplinary authority.
• April 2, 2013: Respondent wrote to Chairperson SHCC- Requesting copies of all documents related to the Fact-Finding Committee’s proceedings and evidence.
• April 08, 2013: Charge sheet was filed and forwarded for the approval of the Board of Governors.
• April 26, 2023: Memorandum was issued – that the Chairman Board of Governors proposes to hold an inquiry against the respondent. And that respondent was directed to submit a written statement failure to which an ex-parte order will be passed.
• May 07, 2013: the respondent asked to provide the allegations, Fact-Finding Committee’s report, and requesting authenticated copies of SMS/messages and additional documents mentioned in the Charge sheet.
• August 02, 2013: An Inquiry Board was established to conduct the investigation.
• In December, 2013: Respondent submitted a list of 24 documents required to submit his reply.
• January 23, 2014: members of inquiry committee ‘requested withdrawal from the inquiry due to the complexity of procedures.’
• A new Inquiry Officer to investigate the charges was appointed.
• January 17, 2014: IC was constituted for the year 2013-14
• February 26, 2014: The respondent requested the Director, to refer his complaint to the IC under the POSH Act.
• March 27, 2014: Respondent raised a grievance about not receiving the requested documents.
• July 01, 2014: Respondent asked the inquiry officer to refer the matter to the IC.
• August 11, 2014: the inquiry officer held the respondent guilty, submitted a detailed report and stated that Section 28 of the POSH Act did not prevent them from conducting the inquiry.

[1] Article 141 of the Constitution of India- The law declared by the Supreme Court shall be binding on all courts within the territory of India.

[2] Section 4 of POSH Act, 2013- Constitution of Internal Complaints Committee.

[3]https://cag.gov.in/uploads/cms_pages_files/Vishkha-Guidelines-against-Sexual-Harassment-in-Workplace-061de8308de91c7-65164897.pdf

[4] Rule 14(2) of CCS CCA Rules 1965: Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehavior against a Government servant, it may itself inquire into, or appoint under this rule, an authority to inquire into the truth thereof.

[5] Proviso to rule 14(2) of the CCS CCA Rules 1965: The Complaints Committee established in each Ministry or Department or Office for inquiring into such complaints, shall be deemed  to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules.

[6] Section 11 of POSH Act, 2013- Inquiry into complaint.

[7] Section 19 of POSH Act, 2013- Duties of employer

[8] Rule 11 of CCSCCA Rules, 1965- Penalties and Disciplinary Authorities.

[9] Rule 14(2) Proviso CCS CCA Rules, 1965- where there is a complaint of sexual harassment within the meaning  of rule 3 C of the Central Civil Services (Conduct) Rules, 1964, the Complaints Committee established in each Ministry or Department or Office for inquiring into such complaints, shall be deemed  to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules.

[10] Rule 14(4) (a) of CCS CCA Rules, 1965- The Disciplinary Authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehavior and a list of documents and witnesses by which each article or charges is proposed to be sustained.