Article (December-2017)

Articles

4. When ICC enquiry & findings are valid

Editorial Team

Designation : -   Editorial

Organization : -  Business Manager HR Magazine

01-Dec-2017

Facts of the case:
The facts of the case are that the complainant Ms. Nidhi Guha made a complaint of her sexual harassment by the petitioner and which complaint pertains to two basic set of facts. The first set of facts pertains to the trip/tour to Hyderabad from 22.7.2014 to 25.7.2014. The second set of facts pertains to harassment of the complainant by the petitioner after coming back from the tour/trip at Hyderabad and which is said to be on account of the complainant not bowing to the illegal actions of the petitioner.

ICC was constituted by the respondent no.1/employer in terms of the relevant provisions of the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as 'the Act') and the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Rules, 2014. ICC issued notice to the petitioner. Petitioner filed his reply to the charges. Evidence was led by both the parties. Department examined 11 witnesses in support of the charges besides filing documentary evidence. Once detailed findings and conclusions are given by the departmental authority/ICC based on the evidence led before the ICC, unless the findings are perverse, this Court cannot interfere with the findings of facts and conclusions given by the ICC.

There were a total of five members of ICC who have given the report dated 17.11.2014, and which concludes with the following recommendations:-
"VI. Recommendation Considering the serious nature of misconduct of the Respondent, ICC recommends the following to the Employer i.e., HLFPPT:

(a) The Respondent, Mr. Gaurav Jain be terminated with immediate effect in view of the findings of the ICC and the service rules of HLFPPT.

(b) Warning to Deepak Solanki, Joseph Savy and Narsimhan for their gender insensitive conduct towards a female colleague during outstation travel by inviting her to a hotel room at night and drinking & smoking by 4 male members in front of a female colleague till the midnight. ICC also recommends counseling them on gender sensitivity.

(c) Undertake regular gender sensitization program including training with regard to Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 in all units of HLFPPT irrespective of governance structure.

On the basis of the ICC Report, Employer terminated the services of Mr. Gaurav Jain, which he challenged in the court.

Ojections by Gaurav Jain:

(i) The ICC of the respondent no.1/employer had no jurisdiction to enquire into the complaint inasmuch as the complaint had to be enquired into only by respondent no.3/National AIDS Control Organization (NACO) with whom the petitioner was posted.

(ii) ICC has recommended punishment of removal of the petitioner from services which is against the rules of the employer-organization.

(iii) The complaint made by the complainant was motivated and malafide and which becomes clear from the fact that it was made after around two months of the trip at Hyderabad and at the stage when the contract of the complainant with the respondent no.1 was to expire.

Court held:
So far as the first argument that not the respondent no.1/employer through its ICC, but the respondent no.3/NACO had the necessary jurisdiction to enquire into the complaint, the argument is ex facie misconceived because it is not disputed that the employer of the petitioner is indubitably the respondent no.1. Surely the employer is entitled to look into the complaints made against its employees and more so because the Act specifically talks of the employer and the ICC of the employer taking action against the employee with respect to a complaint made by an employee of the employer-organization. Reliance placed by the petitioner upon the provision of Section 2(g) (ii) of the Act that it is the management at the work place which controls the work place only has the power to take action on complaint of sexual harassment, is a misconceived argument because employer is exhaustively defined by Section 2(g) of the Act and the provision of Section 2(g) of the Act contains four sub-clauses and employer can fall into any of the four sub-clauses. More importantly, once the employer is covered under Section 2(g)(i) of the Act, the provision of Section 2(g)(ii) of the Act does not apply as this latter provision itself states that the same will apply only if the employer is not one already covered under Section 2(g)(i) of the Act. The object of Section 2(g)(ii) of the Act is to elucidate and enlarge the scope of employer and not narrow the scope of Section 2(g)(i) of the Act ie in case an employer is not covered under Section 2(g)(i) of the Act, the employer can fall under Section 2(g)(ii) of the Act. This is clarified by Section 2(g)(iii) of the Act which provides that the person who performs the contractual obligations to the employee ie payment of salary etc, would be the employer. I therefore do not find anything in the provision of sub-clause 2(g) (ii) of the Act relied upon by the petitioner which states that an actual employer cannot take action against the employee once there are allegations of sexual harassment alleged against the employee. The first argument urged on behalf of the petitioner is therefore rejected.

The second argument urged on behalf of the petitioner that ICC had no power to make recommendation for termination of services of the petitioner, is once again a misconceived argument and in fact the provision of Section 13(3)(i) of the Act which is relied upon by the petitioner goes against the petitioner because this provision specifically states that ICC shall recommend to the employer the action which is to be taken against the employee, of course which action has to be in accordance with service rules. Before me no service rules are filed or pointed out or referred to which say that in spite of a complaint having been proved of sexual harassment of an employee, the service rules provide that an employee who is guilty of sexual harassment cannot be terminated from services. The second argument urged on behalf of the petitioner is also equally misconceived and is therefore rejected.

Gaurav Jain vs. Hindustan Latex Family Planning. (Delhi H.C.) W.P(C)  No. 139/2015 & CM No.218/2015 (stay) decided on 7 January, 2015