In the case of Pradip Mandal vs. Union of India and Ors., the High Court of Calcutta, in its decision dated 9th June, 2016, held that Section 13 (4) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”) makes the recommendation of the ICC (inquiry report) binding on the employer and copy of this recommendation (inquiry report) must be provided to the concerned parties within a reasonable time and certainly before employer acts upon it, so that an aggrieved party can file an appeal, if he/she desires to do so.
The facts of the case are that in a matter of sexual harassment, the Internal Complaints Committee (“ICC”) of an organization furnished its inquiry report under Section 13 of the Act and following the report of the ICC and its recommendation, the disciplinary authority passed an order imposing punishment of lowering Mr. Pradip Mandal’s (“Petitioner”) grade of pay. Then, the Petitioner was given a copy of this order of punishment before he was given a copy of the report of the ICC.
The Petitioner opted to prefer an appeal against the order of punishment without preferring any appeal against the report of ICC. He filed a petition before the High Court of Calcutta under Article 226 of the Constitution of India praying to the Court that the order of punishment arising from the inquiry report be rescinded. The question that arose for consideration of the Court was whether filing a writ for rescission of order of punishment, instead of filing an appeal against the report of the ICC, is enough to challenge and reverse the order of punishment imposed by employer.
In the above context, the Court observed and held that:
- The Act gives a somewhat exalted status to an inquiry report under Section 13 of the Act than an ordinary inquiry report would command before a disciplinary authority in a departmental action.
- Section 13(4) makes the recommendation of the ICC binding on the employer and the final recommendation cannot be tinkered with by the employer or its disciplinary authority or regular appellate authority. The findings become binding and the only exercise that is to be undertaken by a disciplinary authority is to consider the quantum of punishment that is warranted in a given set of circumstances.
- The recommendation is binding on the employer subject to the right of appeal, recognised by Section 18 of the Act. Therefore, if appeal is filed and is successful, the recommendation of the ICC and the order of punishment (if already passed in accordance with the recommendation) would become insignificant.
- The report of the ICC must be made available to the Petitioner within reasonable time of the same being prepared or simultaneously with the same being forwarded to the employer. At any rate, such report must made available to the Petitioner prior to the order of punishment being passed.
With respect to the facts of this case, the Court held that once the Petitioner challenged the consequence (i.e. order of punishment) and not the root (i.e. report of ICC), it was not permissible for the Petitioner to change tack and attack the root. The Petitioner could have undone the order of punishment if he had appealed against the report of ICC and succeeded in it. But because he consciously chose not to prefer an appeal against the report of ICC, he was no longer in a position to challenge the findings of fact in the report of the ICC. In the absence of challenge to the report of the ICC, the court could not state that the decision of the employer was wrong as the employer was simply acting on the basis of the report of the ICC (which employer is mandatorily required to do).
– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner POSH at Work