HC to State Government: Frame guidelines to protect identity of complainants in POSH cases while ensuring fair inquiry, Read Judgment

“The fundamental principles relating to the principles of natural justice is that when a prejudicial statement is made, the same shall not be used against any person without giving him an opportunity to correct and contradict.”-Kerala HC

Ina recent ruling, the Kerala High Court addressed concerns regarding procedural fairness in disciplinary inquiries under the POSH Act, 2013. The case involved a Deputy Director in the District Tourism Office, who challenged the Internal Complaints Committee’s findings and the subsequent disciplinary actions initiated against him. The Court examined the right to cross-examination, compliance with service rules, and the balance between natural justice and victim protection. Further, it considered whether an employee facing disciplinary proceedings could challenge interim stages before a final decision.

The petitioner, a Deputy Director in the District Tourism Office, was subjected to an enquiry by the Internal Complaints Committee under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act) following a complaint by a female co-worker. The Internal Committee, after its enquiry, submitted a report (Annexure A3), leading to the issuance of a Memo of Charges (Annexure A5) and a Show Cause Notice (Annexure A20), proposing to demote the petitioner to the junior-most position in the category of Tourist Information Officer.

Challenging the enquiry report and the subsequent proceedings, the petitioner filed a case before the Kerala Administrative Tribunal, seeking to set aside the report. However, the Tribunal refused to interfere, stating that the challenge was premature and that the petitioner could pursue remedies after final orders were issued. Aggrieved by this, the petitioner filed the present original petition under Article 227 of the Constitution of India before the High Court.

The petitioner argued that under Section 11 of the POSH Act, the Internal Complaints Committee (ICC) must conduct inquiries as per the applicable service rules. However, he contended that he was denied participation and cross-examination, violating the Kerala Civil Services (Classification, Control, and Appeal) Rules.

He contended that the inquiry process was unfair and in violation of natural justice principles. He relied on the judgment in Sibu L.S. v. Air India Ltd., New Delhi, which emphasized that an accused must be given an opportunity to correct and contradict prejudicial statements.

He also challenged the Kerala Administrative Tribunal’s refusal to interfere, asserting that his rights had been violated and that the disciplinary process was flawed.

Contentions of the Respondent:

The respondent argued that the POSH Act provides a special mechanism for handling sexual harassment complaints and that strict disciplinary rules do not always apply in such cases. The ICC conducted the inquiry as per statutory provisions, and there was no absolute right to verbal cross-examination.

It was contended that the petitioner was given an opportunity to present his defense in an alternative manner, ensuring procedural fairness. The Tribunal’s refusal to interfere was justified as the inquiry was still ongoing, and challenges at an interim stage would disrupt the process.

The respondent further stated that the principles of natural justice were upheld, balancing the rights of the accused while ensuring that the complainant could testify without intimidation.

The Court examined Sections 11(1) and 13(3)(i) of the POSH Act, stating that an inquiry against a State employee must follow disciplinary proceedings to establish misconduct. The relevant procedural rules, such as the Kerala Civil Services Rules, must be followed.

On the right to cross-examine, the Court held that while cross-examination is fundamental to natural justice, it must not intimidate or deter the victim. Referring to Sibu L.S. v. Air India Ltd., New Delhi, it stated: “The fundamental principles relating to the principles of natural justice is that when a prejudicial statement is made, the same shall not be used against any person without giving him an opportunity to correct and contradict.”

If the complainant is unable to withstand verbal cross-examination, alternative methods must be adopted: “If the Committee is of the view that the aggrieved is feeble and cannot withstand any cross-examination, the Committee can adopt such other measures to ensure that the witness statement is contradicted or corrected by the delinquent in other manner.”

The Court clarified that lack of verbal cross-examination alone does not invalidate the inquiry, provided the accused has a fair chance to respond.

It also reiterated that a delinquent employee should not challenge intermediary proceedings before the final decision. It observed: “As a general rule, a delinquent facing a disciplinary enquiry should not be permitted to challenge the intermediary proceedings until the enquiry and the consequential decision of the disciplinary authority are concluded.”

Frequent challenges would disrupt public administration and prevent finality: “If the enquiry proceedings or disciplinary actions are subjected to challenges at every interim stage, there will not be any finality to the process and that will affect the very system of public administration.”

However, considering the petitioner’s claim that he was not allowed to challenge the complainant, the Court issued the following directions:

• The disciplinary authority must ensure that the ICC inquiry complied with the Kerala Civil Services Rules and that the petitioner had a chance to present evidence or discredit the complainant.
• It must verify compliance with the second proviso to Section 11(1) of the POSH Act.
• If the inquiry complied with legal requirements, further proceedings may continue.
• If irregularities are found, the matter may be remitted to the ICC for rectification and a fresh report.
• Due to undue delay, the process must be completed within three months.

The Court also noted the lack of a mechanism to anonymize the complainant’s identity in POSH proceedings. Recognizing privacy as a fundamental right, it observed: “When the right to privacy is recognized as one of the important facets of the fundamental rights of a person, a complainant who raises such a grievance is also entitled to ensure that her whereabouts are anonymised from the public domain.”

However, it clarified that anonymity should not prejudice the accused’s right to defense. The first respondent was directed to frame necessary guidelines within four months.

The Court referred to the Bombay High Court’s guidelines in P v. A & Ors. (Suit No.142 of 2021, dated 24.09.2021) on protecting victims' privacy and permitted the Government to adopt similar measures with modifications if necessary.

The disciplinary inquiry was to follow Kerala Civil Services Rules, ensuring the petitioner had a fair chance to respond. Verbal cross-examination was not mandatory if alternatives were provided. Interim challenges were discouraged to maintain administrative finality. The disciplinary authority was to verify compliance and rectify irregularities if needed. The process was to conclude in three months, and guidelines for anonymizing complainants were to be formulated.

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