Facts of the case

The Petitioner during his service as a Deputy Director in the District Tourism Office faced an enquiry which was initiated against him by Internal Committee (IC) under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 based on a complaint from a female employee. The allegation against the Petitioner is that he harassed the Complainant, a female co-worker in various ways. A Show Cause Notice was issued to the Petitioner by which a punishment of lowering him as the junior most in the category of Tourist Information Officer was tentatively proposed.

The Petitioner submitted a reply raising serious objection against the enquiry report and the proposed consequential actions. The Petitioner then approached the Kerala Administrative Tribunal for setting aside the report and further proceedings. The Kerala Administrative Tribunal refused to interfere with the proceedings initiated against the Petitioner stating that the objection raised by the Petitioner is premature and he could avail of his remedies when final orders are issued.

This Kerala Administrative Tribunal Order has been challenged before the Hon’ble Kerala High Court through Petition filed under Article 227 of the Constitution of India.

Contentions of the Petitioner

 The contention of the Petitioner is that the IC is bound to enquire into the complaint in accordance with the provisions of the service rules applicable, yet the Petitioner was denied participation in the enquiry, and he was not given an opportunity to cross examine the Complainant. It was further contended by the Petitioner that the enquiry should have adhered to service rules applicable to him under Kerala Civil Services (Classification, Control and Appeal) Rules. The Petitioner further contended that the procedure followed by the IC violates the second provisio to Section 11 of the POSH Act. The Petitioner placed reliance on Sibu L.S. v. Air India Ltd., New Delhi and Other.

Court’s Observations

The Court observed that the procedure to be followed in such enquiry must be the procedure prescribed under the Kerala Civil Services (Classification, Control and Appeal) Rules or such other departmental rules applicable to the employee.

However, before allowing the delinquent to cross-examine the victim of sexual harassment, the committee must ensure her capability to depose before them fearlessly and without intimidation. The Court also observed that the mere fact that the Petitioner was not permitted to verbally cross examine the victim, cannot be said that the enquiry is vitiated. The court pointed out that a delinquent should not be permitted to challenge the disciplinary proceedings at an interim stage as that would cause delay to reach finality and thereby the delinquent can challenge the final outcome.

Court Decision

The disciplinary authority should ensure that the IC proceed with enquiry in the manner provided in the Kerala Civil Services (Classification, Control and Appeal) Rules and the Petitioner is given an opportunity to discredit the complaint or to adduce evidence before the Committee. The Court directed that the Respondent’s complete the entire process at the earliest within a period of 3 months from the date of receipt of this judgment.

During hearing of this Petition, the court observed that there is no mechanism to anonymise the Complainant who alleges that she faced sexual harassment or other atrocities as envisaged by the POSH Act. The Court emphasized that right to privacy is recognised as one of the most important aspects of the fundamental rights of a person and therefore a Complainant who raises a complaint is entitled to ensure that her whereabouts are anonymised from the public domain. The Court referenced a decision of the Bombay High Court in P v. A and Ors. and suggested to consider those guidelines with necessary variations.

Credits: Adv. Siddhi Sawant