While shunning 'moral policing' by ICC, HC holds that ICC can't comment on personal conduct of parties while dealing with sexual harassment at workplace
A Delhi High Court bench, consisting of Hon’ble Justice Pratibha M Singh, in the case of Bibha Pandey vs Punjab National Bank & Ors. (dated 16.12.2020) has held that the jurisdiction of Internal Complaints Committee (ICC) established under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), is limited to allegations of sexual harassment and whether a complaint is made out or not, to that effect. ICC, the court further held-"cannot make comments on the personal conduct of the parties."
A complaint under the POSH Act was filed by the Petitioner against Respondent No.3 who was working as the General Manager of the Respondent No. 1 Bank, in Mumbai. The complaint was referred to the ICC (constituted by the Bank).
The 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 against the Respondent No. 3, was rejected. Now, after having rejected the complaint, the ICC made an observation that the behaviour of the parties had been inappropriate and unbecoming of Officers/Employees of the Bank, and accordingly- it recommended the Competent Authority to take suitable action against the Petitioner and the Respondent No. 3.On the basis o this recommendation and various other communications between the Petitioner and Respondent No. 3, a chargesheet was served upon the Petitioner under Regulation 6 of the Punjab National Bank Officer Employees’ (Discipline & Appeal) Regulations, 1977.
Hence, the Petitioner filed the present petition challenging: (i) the recommendations of the ICC- as given in its report dated 15th March 2017; & (ii) the action taken by the Punjab National Bank on the basis of such report.
Single Bench OrderBy virtue of an order 19.04.2017- ld. Single Judge, while entertaining the present petition, had stayed (till further hearing) the ICC’s recommendation and the consequent charge-sheet.
Now, during the pendency of the petition, the Petitioner became eligible to be considered for promotion. Petitioner submitted that her promotion is being held up in view of such pendency- thus the Court directed the 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. But, due to the lockdown, the matter could not be heard thereafter.
In the meantime, the Bank has also placed on record, in a sealed cover, the relative performance of the Petitioner and her prospects for promotion, independent of the charge-sheet against her.
Case of the Petitioner
It was submitted that: upon sexual harassment complaint filed by Petitioner under POSH Act being rejected, the ICC can merely, close the enquiry for the case not having been made out against Respondent No.3. However, the recommendation made for taking action due to the alleged “unbecoming” conduct is contrary to Section 13(2) of the Act.
It was further submitted that: “insofar as the conclusions of the ICC are concerned, for personal reasons, the Petitioner does not wish to press any challenge in respect of the conclusion, so long as the recommendation made by the ICC is set aside by this Court."Case of the Bank
It was submitted that: there was no doubt that the ICC concluded that the Petitioner was in a consensual relationship. However, in terms of the rules of the Bank, whenever there are any disciplinary proceedings which are pending, the Bank is bound to keep the promotion in a sealed cover in view of Paragraph 20(1) and Paragraph 20(2.5) of the Promotion policy of the Bank. It is in view of the said policies that the Petitioner’s result has been kept in a sealed cover.
Reasoning and Decision of the Court
The Court at the very outset, examined the conclusion arrived at by the ICC and the while doing so, the Court observed that the conclusions of the ICC were in two parts. In the first part, the ICC concluded that the allegations were not substantiated and the complaint was not made out.
In the second part, the ICC went further and commented on the conduct of the Petitioner and the Respondent. It also recommended that the Bank `may take suitable action’.
The Court then examined the provisions of Section 13 of the Act, in the following terms:“Section 13 contemplates various situations relevant to the inquiry report. Insofar as the ICC is concerned, there are two situations contemplated under Section 13(2) and 13(3).”
“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 also observed that it is not within the scheme of the POSH 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.
Making observations of the ‘moral policing’ done by ICC, the Court observed:
"`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."
The Court, thus, quashed the Charge-sheet drawn up on the Petitioner on the basis that one of the factors leading to the chargesheet was the recommendation of the ICC and since the recommendations were not sustainable in eye of law (out side jurisdiction of the ICC), the charge sheet should be quashed.
"In view of the above position, the fact that the Petitioner has become 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. The chargesheet would no longer be an obstacle in the Petitioner’s promotion and no disciplinary enquiry would now be held against the Petitioner pursuant to the said chargesheet."
Name: Bibha Pandey vs Punjab National Bank & Ors.
Bench: Hon’ble Justice Pratibha M Singh
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