Cross-Examination in Sexual Hara

Calcutta HC Upheld Respondent’s Rights and stated that an Opportunity to Cross-Examine in Sexual Harassment Complaints Ensures Fair Inquiry.


In Union of India and Ors. vs. X, (2019 (3) CHN (CAL) 33),  X, was a railway officer, and he was accused of sexual harassment by a female employee who had been appointed on compassionate grounds. The complaint alleged that X was pressuring her to engage in inappropriate activities, threatening her and her child’s safety if she did not comply. An inquiry was initiated, and X attended the proceedings. He requested to submit relevant documents related to the inquiry but was denied some of them by the Women’s Right Protection Committee (WRPC).

After examination and inquiry, the WRPC found X guilty of sexual harassment. The WRPC recommended actions including considering a transfer for the victim, disciplinary action against X, and restrictions on his duties involving women candidates. He was issued a show-cause notice and later removed from service, although he appealed the decision. The appellate authority reduced his rank instead of outright removal. However, he did not resume duty and instead approached the tribunal, ultimately leading to a successful outcome for him in the application filed (OA 708 of 2013). Hence the Union of India and three officers of the Southeastern Railway filed a petition before the Calcutta HC under Article 226 of the Constitution questioning the soundness of a judgment and order passed by the Central Administrative Tribunal, Calcutta Bench (hereafter ‘the tribunal’) on OA 708 of 2013.

Courtā€™s Observation-

The Court  reviewed the tribunal’s judgment and found that the tribunal did not consider the fact that X’s removal from service had been overturned, and a penalty of reduction in rank for five years had been imposed instead. The tribunal focused solely on the removal order without addressing the appellate order.

Mr. Chatterjee, the advocate for the petitioners, argued that the removal order merged with the appellate order, citing legal precedent. He also referenced the Vishaka case, which mandates rules against sexual harassment in the workplace. Amendments to the Railway Servants (Discipline and Appeal) Rules were made in 2004 to address such complaints. However, the CourtĀ  found procedural defects in the inquiry against X, such as obtaining statements in his absence and not allowing him to cross-examine witnesses. The CourtĀ  noted discrepancies in witness testimonies and criticized theĀ  handling of the case. Petitioners argued that the principles of natural justice were upheld in the proceedings, but the CourtĀ  disagreed. Despite X’s failure to comply with the reduction in rank penalty, the CourtĀ  decided to proceed with a fresh disciplinary process due to procedural irregularities.

Call to Action
Upcoming POSH Certification Workshop
Register Now

The Court  examined the authorities cited by the Petitioners particularly the case of Hira Nath Mishra and Ors. v. The Principal, Rajendra Medical College, Ranchi and Anr, (AIR 1973 SC 1206) where male students were accused of misbehaviour with female hostel inmates. In that case, the Court  found that natural justice was fulfilled as the accused were given the opportunity to defend themselves and the committee was meticulous in its inquiry. However, the Court  clarified that this case doesn’t establish a precedent where victims’ statements must be recorded without the accused present or without allowing cross-examination. The Court  emphasized that the accused, in this instance, X, being a railway servant, is entitled to the protection of Article 311 of the Constitution, which guarantees a reasonable opportunity of defence.

The Court  also referred to another case, A.R.S. Choudhury v. The Union of India (AIR 1956 Calcutta 662) which outlined the procedural fairness required in departmental inquiries, stressing the importance of a fair hearing and cross-examination. The Court  noted that the right to cross-examination is fundamental in both criminal and departmental proceedings.

The Court  found glaring procedural defects in the inquiry against X. Witnesses’ statements were recorded in X’s absence, and X was not given the opportunity to cross-examine them. The Court  emphasized that such procedural defects vitiate the inquiry process and nullify its findings. Despite the necessity to protect the victim, the Court  found no justification for the inquiry’s approach in not allowing cross-examination and recording demeanours of witnesses.

The Court  further criticized the inquiry’s failure to consider X’s defence and its reliance on contradictory evidence. It highlighted the inquiry’s lack of diligence in proving the charges against X, which could lead to the victim being labelled as untruthful. Ultimately, the Court  deemed the entire inquiry futile due to these procedural and evidential deficiencies.

Court’s Order:

The Court  acknowledged the prevalence of sexual harassment against vulnerable women by powerful men in India, highlighting its pervasive nature in both public and private spaces. It recognized the challenges faced by victims and cautioned against exploiting such incidents for personal gain. It also  emphasized that while it cannot reevaluate evidence, it must ensure that findings are not perverse, and that due process is followed. It pointed out contradictions and flaws in the inquiry proceedings, concluding that the management failed to establish the charge of sexual harassment against the accused officer and denied him a reasonable opportunity of defence.

Regarding the disciplinary actions taken against the accused officer, the Court  found them to be unjust and not in accordance with established legal principles. It set aside the orders of the disciplinary and appellate authorities, allowing for the reinstatement of the accused officer to his previous position as Senior Welfare Inspector.

However, the Court  ruled that the accused officer would not be entitled to back wages for the period of his absence, though it would count toward his retirement benefits. It also ordered that the victim should not be posted in the same office as the accused officer.

-By Adv. Deeksha Rai

Comments are closed.