In the case of Vimalkant Bhanuprasad Shrimali vs. IDMC Limited, the High Court of Gujarat said that in POSH cases, the POSH Act provisions supersede provisions of disciplinary rules, verbal cross-examination is not mandatory, witness names can be anonymous and past records of respondent’s behaviour can be taken into consideration.

Facts:

Petitioner was working as an Assistant Vice President, HR and Administration with IDMC Limited (“Respondent 1”). He had served the Company for about two years. The complainant made a complaint to the Respondent under the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal), Act, 2013 (“POSH Act”).

A notice was issued to the Petitioner stating that based on the complaint, being an employee of the Company, the petitioner was to explain in writing the charges levelled against him. Petitioner denied the allegations. An inquiry was conducted and completed as per the POSH Law and copy of inquiry report was supplied to the petitioner. Report concluded that the petitioner was guilty and his services were terminated. This was confirmed in appeal as well.

In this petition, under Article 226 of the Constitution of India, the petitioner challenges an order dated 21.5.2020 (as per which services of the petitioner came to be terminated) and an order dated 31.8.2020 (as per which the termination order was confirmed if when petitioner filed an appeal).

The Court perused the POSH complaint filed by the complainant. Court said that the complaint indicated several actions or instances indicating that the behavior of the petitioner fell within the definition of the term “Sexual Harassment.”

Petitioner argued that provisions of Discipline and Appeal Rules of the Corporation were not followed:

Petitioner argued that the procedural rules of the departmental inquiry proceedings as envisaged under Rule 29 of the IDMC Disciplinary Rules were not followed.

Court referred to Section 11 of the POSH Act and stated that Internal Committee (“IC”) constituted by the employer must proceed to inquire into the complaint in accordance with the provisions of the service Rules applicable to the respondent.

Court also referred to the Discipline and Appeal Rules of the Corporation which applied in case of proceedings under the Sexual Harassment Act. Rule 5.2 of the IDMC Limited, Conduct, Discipline and Appeal Rules, 2019 reads as under:

5.2: Any violation of this rule will be considered as misconduct: Where there is an act of sexual harassment by any employee as defined in Rule 5 of the company’s CDA rules, the Internal Complaints Committee (ICC) established under the provisions of Section 4(2) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal), Act, 2013, in the offices/units of Company for inquiring into such complaints, shall be deemed to be the inquiry authority appointed by disciplinary authority for the purpose of these Rules. In the event of any issues concerning contradiction(s) relating to procedural or interpretation with respect to this Section in the company CDA rules and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal), Act, 2013 and the rules made thereunder, the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the rules made thereunder shall prevail.”

Court said that as per the Discipline and Appeal Rules, where there is any act of Sexual Harassment by any employee as defined in Rule 5 of the Company’s CDA Rules, the IC established under the provisions of Section 4(2) of the POSH Act shall be deemed to be the Inquiry Authority appointed by the Disciplinary Authority.

Court said that, Petitioner’s argument is misconceived. It said “Reading the provisions of the Sexual Harassment Act with Rule 5.2 of the Discipline and Appeal Rules, the water tank compartment that may be considered to be followed under the Discipline and Appeal Rules can be dispensed with when an inquiry is undertaken by the ICC for an allegation of Sexual Harassment.”

Petitioner argued that verbal cross-examination was not allowed:

A categorical observation was made in the inquiry report that the petitioner refused to submit any written questions. Court said that perusal of the inquiry proceedings of the IC indicates that the witnesses were presented, their audio recordings were undertaken, the petitioner was given a questionnaire to fill in by the IC for setting up questions which he would want the petitioner to respond in cross examination.

Court said that looking to the provisions of the POSH Act, the necessity to submit written questions for the purposes of cross examination of witnesses instead of verbal cross examination is a valid exercise in context when the aggrieved woman and the delinquent are under the same employment. If the witnesses in favour of the complainant and the complainant herself are confronted in person with the delinquent, it is possible that it would put the witnesses and the complainant under stress and awkward position looking to the vast difference at the position of the witnesses and the complainant as against the delinquent. The witnesses would not be able to depose freely without fear. Even otherwise, what is evident is that the petitioner did not cooperate and respond by filling in the questionnaire that the Inquiry Committee asked the petitioner to do.

Court referred to the decision in the cases of Dr. B.N.Ray vs. Ramjas College & Ors., MANU/DE/2131/2012 and Prof. Bidyug Chakraborty vs. Delhi University and Ors. MANU/DE/0927/2009 in which the High Court of Gujarat held that although it was obligatory to follow at least the fundamental principles of conducting inquiries, however, the Supreme Court had directed that not only the witnesses’ identity be not revealed but the only way that the cross examination can be done is by submitting a questionnaire (in the case of Apparel Exports Promotion Counsel v. A.K. Chopra, MANU/SC/0014/1999).

In the Bidyug Chakraborty case, on complaints of sexual harassment being made against the petitioner before this Court, who was working in University of Delhi, an Inquiry Committee was set up to investigate the complaints. The Committee submitted its report holding the petitioner guilty of sexual harassment. Pursuant to the report of the Committee, the Executive Council of the Committee warned the petitioner and also debarred him from holding any administrative post in the University for a period of 03 years. The petitioner filed the aforesaid writ petition seeking quashing of the Memorandum, whereby warning was given to him and he was debarred from holding any administrative post in the University for a period of 03 years as well as the report of the Inquiry Committee.

The Committee did not give an opportunity to the petitioner for verbal cross-examination of the witnesses examined by it and copies of their statements were not supplied to him. After completion of examination of the witnesses, no opportunity was given to the petitioner to produce defence witnesses, though at the time of supplying the charge-sheet to him he was given an opportunity to give names of the witnesses whom he wanted the Committee to examine. Allowing the writ petition a Division Bench of this Court, inter alia, held as under:

“As noted earlier, no opportunity was given to the petitioner for verbal cross examination of the complainant. A perusal of the inquiry report shows that the committee informed the petitioner that he could cross examine the complainant by giving written questions to the committee. In our opinion, mere permission to give written questions to the committee for cross examination of the complainant does not fulfil the legal requirement on the part of the Inquiring Authority, to give opportunity to the delinquent to cross examine her. Cross examination by giving written questions to the inquiring authority can never be as effective as verbal cross examination and cannot be its proper substitute. While putting questions to a witness the examiner does not know what answer the witness would give to the questions put to him/her. It is, therefore, not possible for him to formulate the next question without taking into consideration the answer given by the witness. The answer given by the witness to one question may lead to further questions from the examiner on the same line, in order to elicit truth from the witness and to impeach his/her trustworthiness. Moreover, asking the petitioner to give written questions for cross examination was confined in respect of the complainant alone. No opportunity was given to the petitioner even to give written questions for cross examination of other witnesses examined by the committee. It was imperative on the part of the Inquiring Authority to give opportunity to the petitioner for her cross examination not only of the complainant but also of the other witnesses examined by it. Denial of opportunity to cross examine the complainant and other witnesses examined by the committee constitutes gross violation of principles of natural justice.

x x x x In the present case, though at the time of serving charge sheet upon the petitioner, the committee asked him to give list of witnesses whom he wanted to be examined by the committee, no such opportunity was given to him after the committee had examined the complainant and other witnesses in support of the complaint. The committee was required not only to give an opportunity to the petitioner to produce his witnesses but those witnesses were to be cross examined by the petitioner and not by the committee, though, it would have been open to the committee to examine them after they had been examined by the petitioner and had also been subjected to cross examination.”

The decision of this Court was challenged by University of Delhi before the Supreme Court. The Supreme Court was of the view that the respondent before it was entitled to a hearing and to cross examine the witnesses produced by the University. However, considering that it was a case of sexual harassment, the Supreme Court directed that the identity of witnesses need not be revealed to the respondent or to his Counsel and for this purpose the respondents would be entitled to submit a questionnaire which will be put to the witnesses for their answers in writing. The learned Counsel for the University undertook to supply the statements of witnesses, without disclosing their names to the respondents and a Local Commissioner was appointed by the Supreme Court for the purpose of getting answers to the questions to be supplied by the respondents. The Local Commissioner was directed to ensure the anonymity of the witnesses. It was also stated by the learned Counsel for the University that the respondents would be entitled to produce their entire defence evidence in addition to the questionnaire and all annexures to the respondent without revealing the identity of the witnesses.

In another Gujarat High Court decision in the case of Dr. Pushkar Saxena v. Govt. of NCT of Delhi & Ors., WP(C) No. 7592/2001 decided on 16.5.2012, the Court held that in the case of an inquiry into allegations of sexual harassment, cross examination need not necessarily be in the presence of the delinquent since sometimes his very presence may result in putting pressure upon the witnesses and may discourage them from coming out with the truth.

Court also referred to Hira Nath Mishra and Ors. vs. The Principal, Rajendra Medical College, Ranchi and Anr., MANU/SC/0044/1973 : (1973) II LLJ 111 SC, and said that principles of natural justice are not inflexible and may differ in different circumstances.

Court said that in the present case, the Committee/Sub-Committee had already disclosed the names of the witnesses to the petitioner and had revealed their identity to him. No useful purpose will, therefore, be served by asking the petitioner to submit a questionnaire, to be answered by the witnesses in writing. However, even while in requiring the petitioner to submit a questionnaire containing questions to be answered by the witnesses, we have to ensure that there is no possibility of the witnesses getting influenced on account of the presence of the petitioner at the time of their cross-examination.

Court said that it cannot be said that the procedure adopted by the Respondent was in any manner violative of the principles of natural justice.

Complainant argued that there were past records of sexual harassment:

Complainant argued that the petitioner while was working at M/s. Jubilant Pharmaceuticals in the year 2017 with Human Resources Department was found that the employer then had received feedbacks about instances of allegations of sexual harassment.

Court said that the provisions of POSH Act indicate that “it is the duty of the management to ensure peace, harmony and congenial working atmosphere in the organization. Perusal of the complaint and the contents thereof indicate that the petitioner had undertaken a behaviour, which would come within the purview of “Sexual Harassment” under the Act. It was, therefore, incumbent on the respondent-employer not to retain an employee, who had indulged in the behavior of sexual harassment and found that in the past also with the previous employer, he was compelled to resign because of such conduct.”