For sexual harassment complaint against high-ranking officer, majority of ICC should not be from same Ministry/Department: Delhi High Court

The Delhi High Court has ruled that for sexual harassment complaints against high-ranking government officers, the majority of the members of the Internal Complaints Committee (ICC) ought not to be from the same Ministry/Department (Rashi vs Union of India)..A Single Judge Bench of Justice Prathiba M Singh ruled,."This would be in accordance with the purpose and spirit of the POSH Act [Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013]. Persons who have served under high ranking officers or in the same department may face difficulty in treating the complaint in an unbiased manner.".The Court was dealing with a review petition against an order directing the constitution of an ICC against a Secretary-level government officer as per the directions of the Cabinet Secretary. .The petitioner, a contractual employee, had made allegations of sexual harassment against the officer, Kamlesh Kumar Pandey..The petitioner had moved the High Court seeking a direction that the ICC be constituted by the Cabinet Secretariat in terms of an Office Memorandum dated September 26, 2008, because the complaint was against a Secretary-level officer..In the review petition, the Central government stated that since the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) had come into existence, the ICC would only be constituted in terms of Section 4. .It was stated that there was no requirement that the ICC should now be constituted by the Cabinet Secretariat as the Office Memorandum concerned no longer existed. .The Court was informed that a new ICC had been constituted comprising three officers from the same department where the alleged offender was working, and one academician from the University of Delhi. Out of the four members, three are women..Relying on a series of decisions, the Court extracted the following broad principles regarding the constitution/conduct of the proceedings in the ICC:.- Members of the ICC must be impartial and there should be no cause for bias;- Members of the ICC should not have conflict with any of the parties involved;- Proceedings should be completely neutral and objective;- Members of the ICC ought to possess blemish-less credentials;- Independent members are needed on the ICC to aid, advise and assist the ICC in a fair and impartial manner;- An independent person should actually be someone external; - There should be no undue pressure and influence on the ICC from senior levels;- In cases where persons who have been at the helm of affairs are themselves the respondents in a complaint, the ICC cannot be one of their choice or of persons who have worked under them;- The ICC should follow a clear and precise procedure to deal with sexual harassment complaints;- The principles of natural justice should be followed scrupulously;- The proceedings should lend confidence and assurance to the complainant and make her comfortable;- The principles and guidelines laid down by the Supreme Court in Vishaka ought to be followed rigorously;- Women should not be the object of sympathy or pity, but a complainant who takes courage to speak out against unwelcome behaviour regardless of the perpetrator is a survivor;- The inquiry proceedings should inspire the confidence of the Court..The age old aphorism that ‘Justice must not only be done but also be seen to be done’ is apt in this context, the Court added. .The judgment further notes that in case of Ministries/Departments, usually the head of the Department/Ministry would be the ‘employer’. .Thus, if the ICC against such person consists of members who are from the same Department/Ministry, there is every possibility of exercise of influence on them, and such a possibility ought to be avoided, the Court said. .Although Section 6 of the POSH Act provides that the victim can approach the Local Complaints Committee when the complaint is against the employer himself, the ICC ought not to be so easily replaced. Only if no alternative is available, should the victim be asked to approach the LCC, the Court added. .As a solution, the Court opined, ."In order to obviate any allegations of unfairness and bias, in case of complaints against high ranking officers, majority of the Committee members preferably ought not to be from the same Ministry/Department.".In the present case as well, the Court ruled that it would only be fair if the ICC was constituted with members who did not belong to the same department. .The Court thus directed that a Committee be constituted by the Cabinet Secretariat, consisting of such persons who are independent and unbiased, to enquire into the allegations made by the petitioner. .It also directed that the present judgment be placed before the appropriate authorities for considering the constitution of an independent ICC to deal with sexual harassment complaints against high-ranking officers of the level of Joint Secretary and above, working in various government departments and ministries..The review petition was accordingly disposed of with these directions. .Advocate Tushar Ranjan Mohanty appeared for the petitioner. .The Centre was represented by Additional Solicitor General Chetan Sharma, with standing counsel Abhay Prakash Sahay and Advocates Manu Singh, Indira Goswami and Sejal Pawal. .Read the judgment: