‘Moral Policing’ is not the job of the Management or of the ICC: Delhi High Court in Cases of Sexual Harassment at Workplace [READ ORDER]

The Delhi High Court upon report of Internal Complaints Committee (ICC) which leads to foundation of chargesheet against employee of Punjab National Bank held that ICC does not have the power to make comments on the personal conduct of the parties or seek action against them for indulging in "inappropriate conduct"

The court held that ICC’s jurisdiction would be restricted to the allegations of sexual harassment and whether a complaint is made out or not

The Petitioner has filed the instant petition challenging the recommendations of the ICC, as given in the report dated 15th March 2017, as well as further action which has been taken by the Punjab National Bank on the basis of ICC’s report.

Brief Background of the case:

• That a complaint under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was filed by the Petitioner against Respondent No,3, who was working as the General Manager in Punjab National Bank, in Mumbai.
• The said complaint was referred to the ICC, which was constituted by the Punjab National Bank, consisting of four members.
• The constituted ICC, upon analysing the complaint, came to the conclusion that the relationship between the Petitioner and Respondent No.3 were based on personal grounds with mutual consent, and that the allegations of sexual, emotional and mental harassment were not substantiated by the Petitioner.Thus, the complaint was rejected.
• The ICC went on to make an observation that the behaviour of the parties had been inappropriate and unbecoming of Officers/Employees of the Bank, and accordingly the ICC recommended the Competent Authority to take suitable action against them, as deemed fit.
• The report of ICC, thereafter, resulted in a charge-sheet being issued on 15th April, 2017, against the Petitioner, under Regulation 6 of the Punjab National Bank Officer Employees’ (Discipline & Appeal) Regulations, 1977.
• Vide order dated 19th April, 2017, the ld. Single Judge, while entertaining the present petition, had stayed the ICC’s recommendation and the consequent charge-sheet

At some point during the pendency of the petition, the Petitioner also became eligible to be considered for promotion. With regards to this contention the court vide order dated 3rd December, 2019, directed Punjab National Bank to independently consider the Petitioner’s candidature for promotion. However, it was directed that the same would not be given effect to and shall be kept in a sealed cover. Due to the lockdown, the matter could not be heard thereafter 

Aas per the provisions Under Section 13(2) & 13(3) of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, The Court remarked that if the allegations of sexual harassment or any other form of harassment, as contemplated under the Act, are not proved before the ICC, the ICC can only recommend the employer to not take any action in the particular matter. However, the ICC, in the present case, has gone beyond its statutory mandate, as recognised under Section 13(2) of the Act. It has, in fact, given observations stating that both the parties i.e., the Petitioner and the Respondent No.3 have indulged in inappropriate/ unbecoming conduct and indiscipline, and has recommended the competent authority to take suitable action against them. Giving such a recommendation is clearly beyond the jurisdiction of the ICC.

The Court rightly discussed the function and jurisdiction of ICC and observed as follows

Complaints of sexual harassment are initially filed with enormous reluctance. The power of the ICC to hold the enquiry and give a report ought to be within the scheme and the four corners of the statute itself. If a case of sexual harassment is not made out, the ICC can only conclude that no action is required to be taken. On the other hand, if a case of sexual harassment is made out, then the recommendation of the ICC can only be for taking appropriate action for misconduct, in accordance with the provisions of the service rules as contained within Section 13(2) and 13(4) of the Act.

It is not contemplated within the provisions of the Act that while holding that no action is to be taken and the complaint is to be rejected, the ICC can direct for suitable action on the ground that the parties have indulged in an inappropriate conduct. Such a determination and consequential recommendation is beyond the jurisdiction of the ICC.

Moral Policing’ is not the job of the Management or of the ICC. Any consensual relationship among adults would not be the concern of the Management or of the ICC, so long as the said relationship does not affect the working and the discipline of the organisation and is not contrary to the Rules or code of conduct binding on the said employees. It is only if a complaint is made of sexual harassment under the Act that the Management can constitute the ICC to enquire into the same. The ICC cannot make comments on the personal conduct of the parties and the ICC’s jurisdiction would be restricted to the allegations of sexual harassment and whether a complaint is made out or not, to that effect. Under these circumstances, this Court has no hesitation in holding that the last paragraph of the recommendation of the ICC, which comments on the conduct of the parties and recommends to the competent authority to take action against the Petitioner and Respondent No. 3, for their inappropriate disciplinary conduct, is not tenable and is liable to be set aside.

Consequently, the court quashed the chargesheet which seeks to take disciplinary action against the Petitioner the chargesheet which seeks to take disciplinary action against the and Petitioner is eligible for promotion means that the Bank would accordingly offer her promotion in accordance with her seniority, performance and merit, as per the applicable service rules.

[READ ORDER]