Delhi High Court
Ms. C (Name And Address ... vs Indian Institute Of Corporate ... on 23 January, 2018
$~25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 455/2018 and CM Nos. 1984/2018, 1985/2018
& 1998/2018
MS. C (NAME AND ADDRESS CONFIDENTIAL) ..... Petitioner
Through: Ms Vrinda Grover, Ms Ratna
Appnender and Mr Soutik Banerjee,
Advocates.
versus
INDIAN INSTITUTE OF CORPORATE
AFFAIRS AND ORS. ..... Respondents
Through: Mr Bhagvan Swarup Shukla, CGSC
with Mr Kamaldeep, Advocate for R-
2.
Mr R.C. Meena, Ex-Regional
Director (ER) & (NER), Ministry of
Corporate Affairs, Govt. of India.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 23.01.2018
VIBHU BAKHRU, J
1. The petitioner, whose name is concealed to avoid any ignominy, has
filed the present petition, inter alia, praying that directions be issued to
respondent nos. 5 to 10 - persons constituting the Internal Complaints
Committee (hereafter „the ICC‟) - to comply with the provisions of the
Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 (hereafter „the Act‟).
2. The petitioner claims that on 10.11.2017 she was sexually assaulted
and groped by respondent no.4. This incident happened within the campus
of respondent no.1 at Manesar, Gurgaon, Haryana. She further alleges that
respondent no.4 had been sending unwelcome whatsapp messages and songs
of sexual nature to the petitioner. The petitioner states that the complaint in
this regard was lodged with respondent no.3 on 13.11.2017 but the same was
not immediately referred to the ICC.
3. According to the petitioner, the ICC was constituted on 28.11.2017.
The petitioner claims that she has also applied for interim relief to the ICC,
however, the same has not been considered as yet.
4. The petitioner claims that the ICC is not following the principles of
natural justice and has not provided any statements, deposition, documents
or evidence that has been placed before the ICC and, therefore, she has been
effectively precluded from responding to the same. She also claims that
some of the witnesses in the case are being intimidated and victimised. The
petitioner also alleges that respondent no.3 has failed to maintain
confidentiality with regard to her identity at the campus and has shared the
details of her complaint openly with other persons.
5. At the outset, Mr Shukla, the learned counsel appearing for the
respondents states that the Ministry of Corporate Affairs, Government of
India had constituted the ICC by an Office Order dated 20.04.2017 and the
petitioner‟s complaint was forwarded to the ICC on 14.11.2017.
6. He states that ICC is currently conducting a preliminary investigation
and is not acting as an "Inquiring Authority". The proceedings are only to
assist the Disciplinary Authority to form a prima facie opinion for
constituting an inquiry under Rule 14 of the CCS(CCA) Rules, 1965.
7. Ms Grover, the learned counsel appearing for the petitioner contends
that even at the stage of such preliminary investigation, it is necessary that
all material collected by the ICC ought to be provided to the petitioner and
she also be given a further opportunity to rebut the same. She submitted that
the petitioner has not been provided any material and also has had no
opportunity to cross-examine any of the witnesses that may have deposed in
favour of respondent no.4 before the ICC.
8. She relied on the decisions of this Court in Manisha Sharma v.
Union of India and Ors.: 196 (2013) DLT 741; Pallavi Pandey v. Kendriya
Bhandar: 2013 SCC OnLine Del 3029; and Sonali Badhe, A.L.A.
Directorate of Enforcement, Ahmedabad v. Ashish Chandra Singh DLA,
New Delhi & Anr.: W.P.(C) 6207/2017, decided on 15.12.2017.
9. This Court is not persuaded to accept the contentions advanced on
behalf of the petitioner. In terms of the Office Memorandum bearing F. No.
11013/2/2014-Estt (A-III) dated 16.07.2015 issued by the Government of
India, Ministry of Personnel, Public Grievances and Pensions, Department
of Personnel & Training (hereafter „DoPT‟), the role of an ICC has been
explained in the context of Rule 14 of the CCS(CCA) Rules, 1965.
10. It is relevant to refer to Rule 14 of the CCS(CCA) Rules, 1965; the
relevant extract of which is set out below:-
"14. PROCEDURE FOR IMPOSING MAJOR
PENALTIES:
(1) No order imposing any of the penalties specified in
clauses (v) to (ix) of Rule 11 shall be made except after an
inquiry held, as far as may be, in the manner provided in this
rule and rule 15, or in the manner provided by the Public
Servants (Inquiries) Act, 1850 (37 of 1850), where such
inquiry is held under that Act.
(2) Whenever the disciplinary authority is of the opinion that
there are grounds for inquiring into the truth of any
imputation of misconduct or misbehaviour against a
Government servant, it may itself inquire into, or appoint
under this rule or under the provisions of the Public Servants
(Inquiries) Act, 1850, as the case may be, an authority to
inquire into the truth thereof.
Provided that where there is a complaint of sexual
harassment within the meaning of rule 3 C of the Central
Civil Services (Conduct) Rules, 1964, the complaints
Committee established in each ministry or Department or
Office for inquiring into such complaints, shall be deemed to
be the inquiring authority appointed by the disciplinary
authority for the purpose of these rules and the Complaints
Committee shall hold, if separate procedure has not been
prescribed for the complaints committee for holding the
inquiry into the complaints of sexual harassments, the
inquiry as far as practicable in accordance with the procedure
laid down in these rules."
11. A plain reading of Rule 14 (2) of the CCS(CCA) Rules, 1965
indicates that an inquiry into any misconduct or misbehaviour against a
Government servant would commence only where the Disciplinary
Authority is of the opinion that there are grounds for inquiring into the truth
of any imputation or misconduct or misbehaviour on the part of the
Government servant. The proviso to Rule 14 (2) of the said Rules specifies
that the ICC would be the Inquiring Authority in cases where the complaint
is of sexual harassment within the meaning of Rule 3 (C) of the CCS
(Conduct) Rules, 1964.
12. It is not disputed that the ICC would be deemed to be an Inquiring
Authority; however, the said inquiry would commence once the Disciplinary
Authority forms an opinion as required under Rule 14 of the CCS(CCA)
Rules, 1965. At this stage, the ICC is only conducting a preliminary
investigation. The ICC‟s dual role has been explained in the guide on "Steps
for conduct of Inquiry in complaints of Sexual Harassment", which was
circulated under the cover of the Office Memorandum dated 16.07.2015.
The relevant extract of the said OM reads as under:-
"Complaints Committee to be Inquiring Authority
6. As per Proviso to Rule 14(2) of CCS (CCA) Rules 1965,
in case of complaints of sexual harassment, the Complaints
Committee set up in each Ministry or Department etc. for
inquiring into such complaints shall be deemed to be the
Inquiring Authority appointed by the Disciplinary Authority for
the purpose of these rules. Complaints Committee, unless a
separate procedure has been prescribed, shall hold the inquiry as
far as practicable in accordance with the procedure laid down in
the Rule 14.
Need for investigation
7. The Complaints Committees may act on complaints of
sexual harassment when they receive them directly or through
administrative authorities etc, or when they take cognizance of
the same suo-moto. As per Section 9(1) of the Act, the
aggrieved woman or complainant is required to make a
complaint within three months of the incident and in case there
has been a series of incidents, three months of the last incident.
The Complaints Committee may however extend the time limit
for reasons to be recorded in writing, if it is satisfied that the
circumstances were such which prevented the complainant from
filing a complaint within the stipulated period.
8. As mentioned above, the complaints of sexual
harassment are required to be handled to be verified. This is
called preliminary enquiry/ fact finding enquiry or investigation.
The Complaints Committee conducts the investigation. They
may then try to ascertain the truth of the allegations by
collecting the documentary evidence as well as recording
statements of any possible witnesses including the complainant.
If it becomes necessary to issue a Charge Sheet, disciplinary
authority relies on the investigation for drafting the imputations,
as well as for evidence by which the charges are to be proved.
Therefore this is a very important part of the investigation.
Dual Role
9. In the light of the Proviso to the Rule 14(2) mentioned
above, the Complaints Committee would normally be involved
at two stages. The first stage is investigation already discussed
in the preceding para. The second stage is when they act as
Inquiring Authority. It is necessary that the two roles are
clearly understood and the inquiry is conducted as far as
practicable as per Rule 14 of CCS(CCA) Rules, 1965. Failure to
observe the procedure may result in the inquiry getting
vitiated."
13. As noted above, at this stage, the Disciplinary Authority has not
formed an opinion for inquiring into the truth of the allegations made against
respondent no.4 and an inquiry against respondent no.4 has not been
instituted as yet. The preliminary investigation conducted by the ICC is only
to assist the Disciplinary Authority to form such an opinion. The preliminary
investigation would also aid the preparation of the imputation of charges for
misconduct and misbehaviour, if any.
14. It is also essential that at this stage detailed findings are not returned
by the ICC as the matter is only at a preliminary stage. Returning definite
findings at this stage would certainly give a cause to the person accused to
claim at the subsequent stage that the ICC had already made up its mind
even before a copy of the imputation of charges were served on him. This
would frustrate the intention of ensuring that the ICC act as an Inquiring
Authority.
15. Since it is stated that the ICC is merely conducting a preliminary
investigation regarding the complaint of the petitioner, no further
interference by this Court is called for at this stage. However, it is necessary
to observe that the ICC would be free to obtain any clarification from the
petitioner, if considered expedient.
16. The ICC is requested to complete the proceedings as expeditiously as
possible after the petitioner returns from the Bharat Darshan Tour.
17. Needless to state that if the petitioner is aggrieved by the Disciplinary
Authority not taking an appropriate action at that stage, the petitioner would
be at liberty to apply.
18. It is also necessary to observe that the petitioner also has the right
even at this stage to approach the concerned authorities for immediate
protection that may be required by her. It is seen that the ICC is also
empowered to grant initial relief, if the circumstances so warrant.
19. Respondent no.2 shall also consider whether it is necessary to enquire
into the role of respondent no.3.
20. The petition is disposed of with the aforesaid observations. The
pending applications are also disposed of.
VIBHU BAKHRU, J
JANUARY 23, 2018
RK/pkv
