In the case of L. S. Sibu vs. Air India Limited and Others, the High Court of Kerala held on April 8, 2016 that:
- Referring to the case of Medha Kotwal Lele vs. Union of India, 2013(1) SCC 311, the Court held that the status of the Internal Complaints Committee (ICC) is deemed to be an inquiry committee for disciplinary action under service rules.
- The ICC can determine the compensation payable by the delinquent to the victim. Thus, the report of the ICC is the determining factor for taking follow-up action by the employer in accordance with service rules or otherwise.
- When an inquiry is concluded, what is left to the discretion of the employer is to take action in accordance with service rules for the proven misconduct.
- The choice left to the employer is to impose a penalty in accordance with the service rules for proven misconduct. If the service rule provides any punishment for such misconduct, the punishment can be imposed based on such findings.
- The law provides an appellate remedy against the recommendation. Thus, the inquiry conducted by the ICC as to the factual finding is final unless it is varied in appeal. It cannot be varied by the employer in a follow-up action.
- Every ICC has to necessarily follow the principles of natural justice in conducting their inquiry. In what manner the principles of natural justice have to be secured in the inquiry conducted in a complaint relating to sexual harassment is a delicate question that has to be addressed by the ICC itself. Natural justice has elasticity and would depend upon the context in which it is referred to.
- The fundamental principles relating to the principles of natural justice are that when prejudicial statements are made, they shall not be used against any person without giving him an opportunity to correct and contradict them. The court went on to say that in a sexual harassment complaint, sometimes the complainant may not have the courage to deny all that has happened to her at the workplace. There may be an atmosphere restraining free expression of the victim’s grievance before the ICC. The privacy and secrecy of such victims are also required to be protected. It is to be noted that verbal cross-examination is not the sole criteria to controvert or contradict any statement given by the aggrieved before any authority. Primarily, in a sexual harassment complaint, the ICC has to verify and analyze the capability of the aggrieved to depose before them fearlessly without any intimidation. If the ICC is of the view that the aggrieved is feeble and cannot withstand any cross-examination, it can adopt other measures to ensure that the witness’s statement is contradicted or corrected by the delinquent in another manner. Fair opportunity, therefore, has to be understood in the context of an atmosphere of free expression of grievance. If the ICC is of the view that the witness or complainant can freely depose without any fear, certainly the delinquent can be permitted to have a verbal cross-examination of such witnesses.
- A fair opportunity should be given to the delinquent in a manner the ICC thinks fit to consider. There is no easy and precise rule defining fair opportunity.
The facts of the case, in brief, are: A complaint was made by 17 female employees of Air India-SATS (AI-SATS) against L. S. Sibu (the petitioner), who was working as an officer-apron in the Ground Services Department (GSD) of Air India Limited. The petitioner was of the view that the complaint made was forged because he had made a complaint against officials of Air India before the Central Bureau of Investigation (CBI), and the complaint was just made to wreck vengeance against him. He argued that the inquiry was concluded without giving him any reasonable opportunity to cross-examine the complainant and controvert the factual findings of the case. The airport authority (respondents) was of the view that the report prepared by the ICC was just a preliminary report and had not attained finality and that further disciplinary action would be initiated as per the Rules and Regulations of Air India, and the petitioner would be able to defend his actions then.
Finally, the Court stated that the complaint must be inquired into afresh by a new ICC (to be reconstituted by the Court) and the petitioner must be given full opportunity to defend himself.