Recently, in a judgment dated July 1, 2019, the Karnataka High Court in the case of Suman Saurabh v. The Internal Complaints Committee, Sexual Harassment of Women at Workplace and Ors. held that a second inquiry by an internal committee on the same charges under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (“Law”) is invalid.
Facts: Suman Saurabh (“Petitioner”) filed the writ petition for writ of certiorari (an order to lower courts to deliver its records so that higher courts can review them) to quash the order or notice dated June 23, 2014, issued by the first respondent (“IC”) and to declare that the second respondent (“Company”) has no power to hold a second inquiry in respect of the same charges. The petitioner received an email on January 29, 2014, from an employee of the HR Department requesting that he attend a meeting on the same day. The meeting, however, turned out to be an inquiry into alleged sexual harassment. He was forced to resign from his services upon the conclusion of the meeting without receiving a copy of the complaint, and he was also not aware of the allegations made against him. He wrote a letter to the IC members expressing his displeasure over the manner in which the proceedings were conducted and also forwarded a copy of that email to his manager.
The petitioner’s resignation was, however, accepted on January 31, 2014, and he was to be relieved from service on March 25, 2014, but he was subjected to further inquiry on February 3, 2014, and then asked to sign documents prepared by the IC. He declined and informed his manager. Thereafter, he did not receive any correspondence from the IC, but he was allowed to continue in employment. In these circumstances, he assumed that the matter was closed. He was sent to the United States on an assignment, where he received a communication from the IC dated May 15, 2014, enclosing a report dated May 11, 2014 (“Recommendation”) holding him guilty of some of the charges of alleged sexual harassment, pursuant to which the IC recommended the termination of his service. After receipt of the email, the petitioner submitted his response, reiterating that he was innocent in the matter while pointing out flagrant statutory violations made by the IC. When things stood thus, the IC again issued the impugned notice dated June 23, 2014, initiating a fresh investigation or inquiry into the complaint. Hence, the petitioner approached the court.
Arguments: The contention of the company was that the complaint relating to the sexual harassment against the petitioner was received on January 21, 2014, and an inquiry in a fair and unbiased manner was conducted. The applicable rules under the law were notified in December 2013, and given the lack of clarity in respect of this requirement during the early days and keeping in mind the sensitivity of the issue of sexual harassment and with an intention to protect the identity of the victim, a copy of the complaint was not served on the petitioner. However, the petitioner was proved guilty in the meeting dated January 29, 2014. After an email dated May 22, 2014, received by the petitioner alleging the process prescribed under the law was violated during the inquiry proceedings, the decision to conduct a fresh inquiry or investigation was made without any conclusion or inference being drawn from the past investigation proceedings.
The learned counsel for the petitioner contended that the decision issued by the IC to hold a fresh inquiry or investigation was impermissible when the recommendation was still pending for adjudication. Therefore, the same is liable to be quashed. He further contended that the plain reading of the recommendation prepared by the IC does not disclose any harassment as alleged in the complaint, much less sexual harassment. Indeed, having recorded a finding that none of the acts amounts to sexual harassment, the recommendation for imposing the extreme penalty of termination is indicative of prejudice and malafides on the part of the IC.
Observation: The Court observed that “in spite of the objections raised by the petitioner regarding the procedure adopted by the IC and the violation of principles of natural justice, the IC proceeded to record the finding on six charges issued in the recommendation.” The Court observed that, exercising the powers under Section 11, the IC recommended the termination of services. Admittedly, the said recommendation was not implemented. When things stood thus, very strangely, the IC issued one more notice, communicating that the IC had initiated a fresh investigation into the complaint. When IC initiated proceedings and recommended termination holding that one of the charges is proved, before the recommendation culminated into any further action, on the basis of the alleged email received by the petitioner, IC proceeded to initiate a fresh inquiry, which was impermissible under the provisions of the law.
Held: The Court said that “Until and unless the recommendation is implemented in accordance with law, it is not permissible for the IC to initiate a fresh inquiry, or if it wants to provide an opportunity to the petitioner on the basis of an email request made by him, the IC, in all fairness, ought to have dropped the proceedings if they had violated procedure as contemplated. The proceedings have not been dropped, and the recommendation made against the petitioner is still hanging on his head. In the meantime, initiating a fresh inquiry on the same charges on the complaint was totally without jurisdiction.”
It also said that, “In view of the provisions of Article 20(2) of the Constitution of India, no person shall be prosecuted and punished for the same offence more than once, as it amounts to “double jeopardy.”. Therefore, the initiation made by the IC for a fresh inquiry on the same charges and the same complaint is impermissible. Admittedly, the recommendation made by the IC is still pending for adjudication, and the initiation of a second inquiry is without jurisdiction.”
Thus, with the above reasoning the Court held that the fresh inquiry cannot be sustained and allowed the writ petition.