Linda Eastwood vs Union Of India & Anr.
2015 Latest Caselaw 9565 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                            RESERVED ON : 30th SEPTEMBER, 2015
                             DECIDED ON : 23rd DECEMBER, 2015

+     W.P.(CRL.) 1904/2013, CRL.M.A.Nos.17357/13, 18718/13,
      19532/13, 3647/15 & 9487/15

      LINDA EASTWOOD                                      ..... Petitioner
                         Through :    Mr.Kirti Uppal, Sr.Advocate with
                                      Mr.Dipak Bhattacharya &
                                      Mr.Niloy Das Gupta, Ms.Wamika
                                      Trehan, Advocates.
                    versus
      UNION OF INDIA & ANR.                             ..... Respondents
                    Through :         Mr.Ajay Digpaul, CGSC with
                                      Ms.Medha Arya and Ms.Rishika
                                      Katyal, Advocates for R-1.
                                      Mr.Jatan Singh, Advocate with
                                      Mr.Akhilesh, Advocate for R-2.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Present Writ Petition under Article 226 of the Constitution of

India read with Section 482 of Code of Criminal Procedure has been filed

by the petitioner „X‟ (assumed name). It is contested by the respondents.

2. I have heard the learned counsel for the parties and have

examined the file. Undeniably, „X‟ is employed with M/S.Bridge & Roof

Co.(India) Ltd. under the Ministry of Heavy Industries & Public

Enterprises and is working in the said institution for the last about 33

years. She lodged a complaint of continued sexual harassment for two

years as per the provisions of the Sexual Harassment of Women at

Workplace (Prevention, Prohibition and Redressal) Act, 2013 (in short

„the Act‟) and filed a complaint before Internal Complaint Committee

under Section 4 of the Act (in short „ICC / respondent No.2‟).

3. By an Office Order dated 01.09.2011, ICC comprising

Mrs.J.Raha (Chairperson), Mrs.L.Alen, Mrs.Janet Anthony, Mrs.Pranati

Mondal, and Mrs.Amrita Sen as its members was constituted. By an order

dated 17.04.2013, after Mrs.J.Raha‟s resignation from the post of

„Chairperson‟ on 15.03.2013, next senior most member of the committee

i.e. Mrs. Linda Alen was permitted to act as its „Chairperson‟. „X‟s

complaint against Mr.M.K.Singh was dealt with by ICC. On 20.04.2013,

the complainant deposed before the committee in the enquiry held by it.

On 20.05.2013 Mrs.Roma Sengupta, Member ICC, visited the company,

discussed the matter with 13 individuals including the complainant and

alleged offender and came to the opinion that the detailed enquiry was

necessary to arrive at a tangible conclusion. The ICC thereafter made a

detailed enquiry into the matter and forwarded the report to the employer

on 29/31.08.2013. In the meantime Mr.M.K.Singh was given additional

charge of CMD by Govt. of India on 30.08.2013. He reconstituted /

formed a new ICC on 13.09.2013. The new committee initiated its

proceedings on 31.10.2013 on X‟s complaint and she was asked to

participate in it. She was summoned to appear before the committee on

13.11.2013.

4. The instant writ petition was filed by the petitioner „X‟ on

12.11.2013. Subsequent to that, during pendency of the writ petition the

reconstituted committee vide its comprehensive proceedings conducted on

23.11.2013 unanimously came to the conclusion that "Mr.M.K.Singh has

erred in using impolite language to „X‟ time and again, may be in

connection with work related issues only and enabled some undesirable

elements to entangle him in such "sexual harassment issues" and to take

undue advantage of the situation as he has been implicated in the instant

case". On 28.11.2013, report of the findings of the ICC was sent to the

concerned Ministry. By a letter dated 19.12.2013 information /

clarification was sought from the Presiding Officer of ICC as the final

conclusion arrived at by it was not unambiguous and specific. The

Presiding Officer vide her letter dated 27.12.2013 responded to the said

letter. Seemingly the findings have since been accepted by the concerned

ministry as communicated vide its letter dated 27.02.2014.

5. Record reveals that the first committee deliberated on X‟s

complaint on 10.05.2013 and decided unanimously to have preliminary

investigation into the matter and also to record the statements of the

complainant and the accused under appropriate provisions of the „Act‟.

The committee in its preliminary investigation found that there was prima

facie case made out towards sexual harassment at the workplace against

Mr.M.K.Singh. Intimation was sent to both the complainant and the

accused under Section 2 (n)(v) of the Act. In its proceedings conducted on

10.07.2013, it was recorded that the complainant had already been

transferred to a new department by the management. The committee

decided to interrogate the witnesses available at the office. Accordingly,

on 10.07.2013 the committee examined Mr.D Adhikari, Mr.S.Chaki,

Mrs.Namrata Mehta, Mrs.Pranati Mandal, Mrs.Sabita Mittra, Mr.Prabhat

Purkait and Mr.Naskar. Mr.M.K.Singh did not participate in the

proceedings. The proceedings further record that upon conclusion of the

interrogation of the witnesses, Mrs.Roma Sengupta asked the complainant

„X‟ whether she would consider entering into a settlement with the

accused as that type of enquiry was lengthy and complicated and both of

them were executives of the same company. The complainant sought time

to think about that. The committee conducted its enquiry proceedings on

29.07.2013 at 11.00 a.m. Since the accused did not appear, matter was

adjourned to 29.08.2013 as „last opportunity‟.

6. Mrs.Amrita Sen, member of the ICC, vide order dated

12.08.2013 was transferred to Delhi Office as Deputy Manager (Legal

Affairs) from Kolkata office w.e.f. 19.08.2013. Accordingly, she vide her

letter dated 14.08.2013 expressed inability to continue as member of the

ICC. This transfer, however, was withdrawn and vide letter dated

17.08.2013, Mrs.Amrita Sen was allowed to perform her duties at Kolkata

Office. Mrs.Linda Alen, Chairperson, wrote a letter on 23.08.2013

requesting her to continue as member of the committee.

7. In the proceedings conducted on 29.08.2013, only Mrs.Linda

Alen, Chairperson and Mrs.Janet Anthony, member, were present. Other

members Mrs.Roma Sengupta and Mrs.Pranati Mondal were absent. The

accused did not appear before the Committee that day also. At 12.30

hours, the Committee decided to go ex-parte with the remarks "Detailed

order reserved". Minutes of the proceedings recorded on 29.08.2013 bear

signatures of Mrs.Linda Alen as Chairperson and Mrs.Janet Anthony as

member. The final conclusion of the committee was that Mr.M.K.Singh

was guilty of committing sexual harassment against the complainant and

he should be punished under the provisions of law. It is pertinent to note

that this report was signed only by Mrs.Linda Alen, Chairperson. On

31.08.2013, she demitted office on superannuation. She submitted final

report to the concerned ministry vide letter dated 31.08.2013. Report was

also sent to the Hon‟ble President of India vide letter dated 31.08.2013 for

information and necessary action. It appears that no action was taken on

final report submitted by Mrs.Linda Alen, Chairperson of the Committee.

8. At the outset, it may be mentioned that original record was

never made available by the respondents despite specific directions. Vide

order dated 03.09.2015 original record pertaining to the first enquiry was

directed to produce on 15.09.2015. Mr.Ajay Digpaul, CGSC for

respondent No.1 requested „dasti‟ process to ensure that the original

record was available on the next date of hearing. It was, however, not

produced that day. On 24.09.2015, the learned Standing Counsel for

respondent No.1 informed that original record was not available as it was

never received by them. Respondent No.2 also failed to produce the

original record.

9. Learned Senior Counsel for the petitioner during the course

of arguments urged to initiate action against Mr.M.K.Singh on the basis of

the findings recorded by the first committee. It was highly objected to by

the respondents. It was contended that no cause of action to file the instant

writ petition arose in Delhi. The writ petition was bad for non-joinder of

necessary party i.e. Mr.M.K.Singh. The findings recorded by the first

committee were superseded / reviewed by the second committee.

10. The findings recorded by the first Committee cannot be

sustained as the original record pertaining to the said proceedings was not

made available to the Court. Besides this, the final report bears signatures

only of chairperson of the Committee. It is conspicuously silent as to why

the signatures of the other members of the committee were not obtained

thereon. There is ambiguity as to when the final report was prepared. It

bears signatures of Mrs.Linda Alen with date 31.08.2013. The final

proceedings were conducted on 29.08.2013 and at 12.30 hours. The

committee had decided to go ex-parte with the remarks "Detailed order

reserved". These proceedings bear signatures of Mrs.Linda Alen,

Chairperson and Mrs.Janet Anthony as member. Subsequently, the

findings were recorded by Mrs.Linda Alen, Chairperson, and it even does

not bear signatures of the other member Mrs.Janet Anthony. This report is

dated 29.08.2013. It is unclear as to when the final findings were recorded

after the detailed order was reserved on 29.08.2013. It is unclear as to why

the final order bears signatures of Mrs.Linda Alen with date 31.08.2013. It

is also not clear why the other member Mrs.Janet Anthony, who was

present on 29.08.2013 did not sign final report dated 31.08.2013. It also

does not record any reason as to why Mrs.Roma Sengupta and

Mrs.Pranati Mondal were absent on 29.08.2013. The vacancy that

occurred due to resignation of Mrs.Amrita Sen on 14.08.2013 was never

filled. Under these circumstances, the final report given only by

Mrs.Linda Alen, its Chairperson, on the day of her superannuation cannot

be sustained as it did not represent the collective will of the Committee.

11. Mr.M.K.Singh vide order dated 30.08.2013 was given

additional charge of CMD. After assuming charge on 02.09.2013, he

reconstituted ICC on 13.09.2013. It now comprised of Mrs.Namrata

Mehta, as its Presiding Officer; Mrs.Pranati Mandal, Mrs.Subhomoy

Chakraborty, Mrs.Sabita Mitra, Mrs.Anita Das and one member from

NGO as nominated by ICC (Ms.Roma Sengupta). X‟s complaint was dealt

with again by the Reconstituted committee. In its proceedings dated

23.11.2013, it was noted that the previous chairperson Mrs.Linda Alen

had not handed over any documentation regarding the various meetings

held during her tenure. Various correspondences were exchanged to get

the record from the previous chairperson / members. However, they

denied to be in custody of any such original document. This time

Mr.M.K.Singh participated in the proceedings before the Reconstituted

committee. Vide its comprehensive findings recorded on 23.11.2013, the

Reconstituted committee came to the conclusion that report dated

29.08.2013 given by the first committee suffered from deformity. It found

that Mr.M.K.Singh had erred in using impolite language to the

complainant time and again, may be in connection with work related

issues only and enabled some undesirable elements to entangle him in

such "sexual harassment issues" and to take undue advantage of the

situation. The proceedings were signed by all the members including the

Presiding Officer.

12. The findings recorded by the second Reconstituted

Committee, in my considered view, cannot be given effect to as the very

foundation / constitution of the committee was flawed. The second

committee came into existence on 13.09.2013 when the first committee

had purportedly submitted its final report to the concerned Ministry on

31.08.2013 and it was pending consideration before it. It is pertinent to

note that Mr.M.K.Singh became CMD on 02.09.2013. By his orders on

13.09.2013, the Internal Complaint Committee was reconstituted with the

above named Presiding Officer / members. The draft was approved by

Mr.M.K.Singh. It is relevant to note that both Mrs.Namrata Mehta and

Mrs.Sabita Mitra had appeared as witnesses on behalf of the complainant

in the proceedings recorded by the previous committee. Apparently, they

had conflict of interest and could not have been included in the Internal

Complaint Committee as Presiding Officer / Member. Mrs.Roma

Sengupta taken as „external member‟ in the second committee was earlier

a member in the first committee and had opted to remain absent on

29.08.2013. She did not sign the final proceedings recorded on

29/31.08.2013. Similarly, Mrs.Pranati Mondal had abstained herself from

the proceedings recorded by the previous committee. Apparently, their

inclusion in the second committee was motivated as they had declined to

remain members in the first committee chaired by Mrs.Linda Alen. The

Reconstituted committee in its proceedings conducted on 23.11.2013 took

no time to exonerate Mr.M.K.Singh of all serious charges. He was also

very prompt to participate in the said proceedings and the committee lost

no time to express thanks for his participation in the said proceedings. The

Reconstituted committee reviewed the findings recorded by the previous

committee. Considering the peculiar facts and circumstances of the case,

the findings of the Reconstituted committee are unsustainable as there was

element of bias and conflict of interest. The employer is expected to

develop clear and precise procedures to deal with the complaints of sexual

harassment in an effective manner. The procedure should be fair and

unbiased. It has to be ensured that there is no undue pressure or influence

from senior level. Credentials of the Presiding Officer / members should

be absolutely without blemish. The entire investigation should be

impartial, independent and without any bias for or against any party.

Members of the committee are expected to ensure that no injustice is

done.

13. In the instant case, Mr.M.K.Singh against whom there were

serious charges of sexual harassment came at the helm of the affairs of the

company at the relevant time and was instrumental in selecting the

members of the committee of his choice to get a favourable report.

Composition of the second committee was, thus, vitiated and flawed.

Principles of natural justice were flagrantly violated. Mr.M.K.Singh being

a party ought not to have taken active part in the decision of formation /

constitution of the Committee. No sanctity can be attached to the

proceedings conducted by the Second committee to give a clean chit to

Mr.M.K.Singh.

14. Earlier, the respondents had objected to the jurisdiction of

this Court to entertain the writ petition. However, during the course of

arguments learned Senior Counsel for the petitioner and the respondent

No.2 were agreeable to the suggestion to conduct a de-novo enquiry by a

Reconstituted committee. A consensus was arrived at to reconstitute the

ICC. A comprehensive list of the male / female officers as per seniority

along with list of NGOs who had agreed to depute a member of the ICC

as per provisions of law was furnished before this Court. It was left to the

Court to pick up the Presiding Officer / members to reconstitute the

committee.

15. Considering the peculiar facts and circumstances, I am also

of the considered view that de-novo enquiry is required to be conducted

by a Reconstituted committee to impart justice to all. The Reconstituted

committee shall be presided over by Mrs.S.Sangmitra, Manager (Design).

Other members shall be Mrs.Bhaswati Ray, Deputy Manager (ERP);

Mrs.Prachi Tewari, Deputy Manager (Accounts & Finance); Mrs.Kajal

Beri, Deputy Manager (Management Accounts) and Mr.Mukul Kumar

Sengupta (Manager, Welfare Services). One member from NGO Swyam

Kolkata registered with Govt. of India / Govt. of West Bengal shall be

associated as „external member‟. The reconstituted committee shall start

its proceedings within ten days and shall submit its report in a time frame

as prescribed under the Act. Mr.M.K.Singh shall not intervene in the

proceedings conducted by the committee in any manner and shall

disassociate himself from any decision pertaining to the committee.

16. The writ petition stands disposed of in the above terms. Copy

of the order be given dasti under the signatures of the Court Master to all

the parties.

17. Pending applications also stand disposed of.

(S.P.GARG) JUDGE DECEMBER 23, 2015 / tr