India: Prevention of Sexual Harassment at Workplace - Replacement of the ICC Chairperson on the grounds of conflict

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ('Act') and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 ('Rules') were enacted on 9 December 2013 with the objective of preventing and protecting women against sexual harassment at workplace. Keeping with its objective, the Act provides a mechanism for the effective and speedy redressal of complaints of sexual harassment. The legal jurisprudence surrounding the Act continues to develop and mature with time as more cases under the Act come to light.   

One of the provisions of the Act which has been interpreted in the recent decision of the Delhi High Court in Ms Neetta Karkhanis v Air India Limited and Anr[1] is §4 of the Act, which requires an employer to constitute an Internal Complaints Committee ('ICC') at each office or branch, of an organisation employing more than 10 employees. The Act envisages constitution of an ICC for receiving and redressal of complaints of sexual harassment. §4 of the Act also governs other ancillary matters in relation to the ICC, including the quorum of the ICC, tenure of the ICC as well as removal of members of the ICC.

In relation to the quorum of the ICC, §4 sub-section (2) prescribes the appointment of a presiding officer, being a woman employed at a senior level at the workplace from amongst the employees, two members from amongst the employees (preferably committed to the cause of women or who have had experience in social work or have legal knowledge) and an external member from an NGO or association, committed to the cause of women, or a person familiar with the issues relating to sexual harassment. §4 sub-section (2) further clarifies that not less than half of the ICC members shall be women.

Non-compliance with mandatory provisions, including non-constitution of the ICC in the quorum prescribed, attracts a penalty, including fine upto Rs. 50,000 and twice the amount of fine for repetition of the same offence. Further, the Act provides for withdrawal, non-renewal or cancellation of business licences, as the case may be, in case of repeated non-compliance.

§4 sub-section (5) stipulates the grounds on which a member of the ICC including the presiding officer of the ICC can be removed from the ICC and the manner in which a vacancy so created or any other casual vacancy is to be filled by fresh nomination.

The grounds contemplated for removal of a member of an ICC in sub-section (5) of §4 include – a) contravention of §16, which deals with prohibition on publication or making known the contents of a complaint and inquiry proceedings; b) upon conviction for an offence or pending inquiry of an offence under any law in force for the time being; c) upon having been found guilty in any disciplinary proceedings or pending disciplinary proceedings; and d) abuse of position, so as to render the continuance in office as an ICC member prejudicial to the public interest.

It is interesting to note that the Act does not contemplate replacement or substitution of a member of the ICC or provide any mechanism to challenge the appointment and/or constitution of the ICC, hearing a complaint of sexual harassment. 

However, the Delhi High Court in its decision has directed replacement of the Chairperson of the present ICC, hearing the complaint, with another eminent lady. This ruling has been made despite the lack of an express provision contemplating such a replacement.

These directions fell from the Delhi High Court, pursuant to a writ petition filed by the aggrieved woman before the Delhi High Court seeking constitution of a fresh ICC, on the basis of apprehensions raised with respect to inclusion of the present Chairperson in the inquiry proceedings, given the close connection between the Chairperson and the Respondent named in the complaint. The writ petition was disposed off as withdrawn, on the basis that Air India would replace the chairperson of the ICC.

The aggrieved woman had made complaints of sexual harassment in 2017. The then ICC looked into the matter without following the procedure or manner of inquiry contemplated under the Act and the Rules. The aggrieved woman preferred an appeal to the appellate authority of Air India seeking reconstitution of the ICC to ensure that the new committee constituted would look into the complaints and conduct inquiry proceedings in accordance with the Act and the Rules. It was in this background, that the present ICC came to be constituted. Thereafter, the aggrieved woman made repeated requests for recusal of the Chairperson of the reconstituted ICC on the grounds of conflict, which remained unaddressed, leading upto the filing of the writ petition.

Conclusion:

The Delhi High Court's decision echoes the importance of fair inquiry by an ICC into any complaint of sexual harassment. The replacement and/or substitution of a member of an ICC on apprehension of conflict is unprecedented, given that there is no express provision under the Act providing for grounds for challenge to seek recusal or replacement of a member of the ICC. This approach is likely to instil faith in the inquiry mechanism stipulated under the Act and may also reduce the number of petitions challenging ICC Reports, which finally reach courts. What remains to be seen is how, in the absence of an express provision providing for grounds of challenge, employers will deal with a situation where the quorum of an ICC is challenged on the grounds of conflict.

For further information on this topic please contact Tuli & Co 

Tel T +91 11 4593 4000, fax F +91 11 4593 4001 or email lawyers@tuli.co.in

www.tuli.co.in


[1] Writ Petition (Civil) No. 7163/2018 and CM No. 27313/2018


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