Article (February-2019)


Inquiry by POSH internal committee has to be procedurally fair

H.L. Kumar

Designation : -   Advocate, Supreme Court

Organization : -  New Delhi


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Sexual harassment of women at workplace is undoubtedly cursed and must be condemned by all despite the enactment of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act. The law is nascent, developing, and unclear. There are no clear roadmaps on how to conduct inquiries. Most committees are unaware of the legal requirement for cross-examination and its importance. The employers, by and large, do not play any role in ensuring that the enquiry committees are equipped to deal with the procedures in accordance with law, except where the stakes are high, or the employer has a personal interest in ensuring an outcome that can be defended in a court of law. In most cases, there is lack of coordination between the Internal committee constituted under the PoSH law and the personnel/disciplinary authority of the organisation.

For instance, on enactment of section 300 of the Indian Penal Code in 1860 providing death sentence for committing murder, there has been no stoppage of murders. The predators and perverts don't refrain for harassment of women at the workplace. Earlier the victims shied to complain but now the Prevention of Sexual Harassment (POSH) Act has facilitated in making complaints which are to be inquired by Internal Committee comprising four members. An inquiry has to be conducted impartially lest it may be rendered an empty formality.

The inquiries conducted by the Internal Committees are altogether different from domestic enquiries. The Internal Committee is vested with the powers of a Civil Court and its recommendations for punishment of the predator cannot be altered by the employer. A Civil Court has around 650 sections, rules and orders for deciding a suit whereas the Internal Committee has only one rule with only 7 sub-rules. A wrong decision can destroy the career, reputation and family life of a man if wrongly held guilty. Hence the members of the Committee must know the procedure for holding of inquiries lest they may be rendered empty formalities.

Section 7(4) of the POSH Act provides that both the parties, the aggrieved woman and the respondent, must be given a fair opportunity to present their respective cases, and the respondent should be allowed to cross-examine the witnesses of the complainant.

Natural justice for holding of inquiries for misconduct or even under Sexual Harassment of Women at Workplace (PP&R) Act is identified with the two constituents of a fair hearing, which are the rule against bias (nemo iudex in causa sua, or "no man a judge in his own cause"), and the right to a fair hearing (audi alteram partem, or "hear the other side"). While holding an inquiry under the Act, the Internal Committee is required to adhere to the 'principles of natural justice' while making the inquiry - Rule 7(4).

The principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial or quasi-judicial authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.

The concept of natural justice had undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed there under. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend, to a great extent, on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. Over the years by a process of judicial interpretation, two rules have been evolved as representing the principles of natural justice in the judicial process, including quasi-judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by all men.

The cardinal characteristic of a judicial or quasi-judicial process is the impartiality of the deciding/adjudicating authorities giving rise, as a corollary, to juridical qualities between the parties before it, and the latter is apt to be gravely imperiled when one of the parties has not been given the opportunity to appear before it thus disturbing the equilibrium between them.

The principles of natural justice are neither new nor limited in their applicability and indeed even God, - and certainly, therefore civilised man made after his image - is bound by it. In R. v. Chancellor of Cambridge, 1723-1 Strange 557 it has been observed :

"The laws of God and man both give the party an opportunity to make his defence if he has any. I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. Adam (says God) where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou should not eat? And the same question was put to Eve also."

Principles of natural justice may also vary in different circumstances. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of each case, the framework of the law under which the enquiry is held, and the constitution of the adjudicator or body of persons appointed for that purpose. The principles of natural justice have to do justice to the contending parties. There is no gainsaying that even for proper natural justice procedural fairness must be observed.