In a decade, since the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) was enacted, many aspects of the law have thrown up multiple challenges for companies as well as the Internal Committee (“IC”) which is constituted by a company to conduct inquiry into complaint of sexual harassment of women at the workplace.

The concept of ‘principles of natural justice’ which the IC must follow in its inquiry as mandated by the POSH Act has been open to varying interpretations and examined by the courts on several occasions – the most recent example being the matter titled Dr. R.K. Pachauri (Deceased) v. Union of India & Ors. (RCA DJ NO. 5/23). The order passed by the Industrial Tribunal of New Delhi (“Tribunal”) on July 03, 2023 (“Order”), compels one to focus on such concept as the Tribunal also delved into the crucial issue of what amounts to the IC following the principles of natural justice in its inquiry proceedings and the extent to which, the IC is free to devise its process of inquiry while ensuring natural justice to the parties.

Brief Facts of the Case

 A complaint of sexual harassment at the workplace was filed against the respondent, namely, the Director General of The Energy & Resource Institute (“TERI”) by a research assistance also working in TERI. An IC was constituted by TERI in accordance with the POSH Act which conducted the inquiry and submitted its report that concluded that the allegations of sexual harassment at the workplace were substantiated. Against this IC report, the respondent filed an appeal before the Tribunal and during the pendency of the appeal, the respondent died, and his legal representatives were taken on record.  The appeal was against the Ministry of Women & Child Development, TERI, and the complainant, challenging the final inquiry report of the IC. The primary ground of appeal was that the IC had conducted a predetermined and hasteful inquiry, and the principles of natural justice were violated by the IC, since the respondent did not get an opportunity to cross-examine the witnesses.

Process of Inquiry under the POSH Act

 Before we delve into the Order, we have summarized the legal provisions relating to the process of inquiry to be followed by an IC. Section 11 of the POSH Act provides the flexibility to the IC to proceed with an inquiry into the complaint of sexual harassment, as per the service rules, if any. However, if no such service rules exist, the mechanism prescribed under the POSH Act is to be followed.

The process prescribed under the POSH Act is contained in Rule 7 which broadly gives the action-items and prescribes timelines for the IC. Amongst other requirements mandated, sub-rule (4) of Rule 7, requires the IC to conduct the inquiry in accordance with the principles of natural justice. No other detailed processes have been prescribed including no express right to cross-examine.

No Opportunity to Cross-Examine – Judicial Precedents

 The right to cross-examine is generally perceived in context of judicial proceedings. However, in the corporate world, holding various types of inquiries is an integral part of running organizations. This would include the most common type of inquiry, namely, disciplinary inquiry in relation to an employee’s misconduct as well as inquiry into complaint of sexual harassment at the workplace. On one hand, while holding a disciplinary inquiry does not entail the right to cross-examine, legally, the delinquent employee must be offered an opportunity to present his/ her defense as mandated under various shops & establishment statutes. On the other hand, in case of an inquiry into complaint of sexual harassment at the workplace, the process prescribed under the POSH Act must be followed which does not specify a right to cross-examine.

However, the issue of right to cross-examine during an inquiry of a complaint of sexual harassment has been brought before the Indian courts multiple times, and therefore, plenty of judicial precedents are available. Probably the most significant decision has been by the Hon’ble Supreme Court (“SC”) in the case of Bidyug Chakraborty (Prof.) v. Delhi University & Ors. (SLP Civil No. 23060/2009).  In this case, while the SC was of the view that the respondent was entitled to cross-examine the witnesses, however, considering that it was a case of sexual harassment, it directed that the identity of witnesses need not be revealed to the respondent and the respondent would be entitled to submit a questionnaire to be put to the witnesses for their answers in writing.

 Given the sensitivity involved in investigating complaints of sexual harassment, courts have consistently held that the IC can assess the need for, or manner of, cross-examination based on the facts and circumstances of each case. Two significant judgements containing relevant observations in this regard are briefly discussed below:-

L.S. Sibu v. Air India Limited & Ors. (MANU/KE/0330/2016) – the High Court of Kerala at Ernakulum held that ascertaining “in what manner the principles of natural justice have to be secured in the enquiry conducted in a complaint relating to the sexual harassment…is a delicate question to be addressed by the Committee itself.” The court in the present instance, made crucial observations at Para 17 that “The fundamental principles relating to the principles of natural justice is that when prejudicial statements are made, the same shall not be used against any person without giving him an opportunity to correct and contradict. In sexual harassment complaint, sometimes the complainant may not have courage to depose all that has happened to her at the work place…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….If the Committee is of the view that the witness or complainant can freely depose without any fear, certainly, the delinquent can be permitted to have verbal cross examination of such witnesses. In cases, where the Committee is of the view that the complainant is not in a position to express freely, the Committee can adopt such other method permitting the delinquent to contradict and correct either by providing statement to the delinquent and soliciting his objections to such statement.”

Ashok Kumar Singh v. University of Delhi & Ors. (WP(C) No. 7371/2016) – the High Court of Delhi also relied on similar principles. In Para 22, the High Court of Delhi elaborated on the procedure that the IC should follow for conducting an inquiry, including cross-examining the witnesses by submission of questionnaire to the IC, ensuring that the complainant or respondent are not present at the time of cross-examination of the witnesses, etc.

The above decisions are indicative of recognition by the courts that in cases of sexual harassment, especially when the respondent stands in a fiduciary capacity to the complainant as well as the witnesses, there are high chances of, (a) the witnesses getting influenced in the presence of such person, or (b) the respondent misusing his position to manipulate the witnesses, or (c) fear of retaliation.

 Keeping in line with above trend, the Tribunal has upheld that “the application of natural justice depends from case to case and protection of witness is a valid consideration for excluding cross-examination of witnesses particularly when they refuse to depose due to fear of person answering the charge.” Consequently, the Tribunal rejected the allegations regarding violation of principles of natural justice.

This Order is also significant in reinforcing the objective of the IC under the POSH Act, i.e., a fact-finding body to provide a speedy and hassle-free remedy to victims of sexual harassment which is devoid of procedural complexities and rigors of courts and tribunals.

Guidance for ICs in Conducting Inquiries

Importantly, the Order can act as a crucial guide for the ICs particularly from the perspective of understanding the way inquiries should be conducted, and inquiry reports drafted, given that such proceedings could be subject to judicial review when an appeal arises.  As examples, in preparing the inquiry report, the IC should, (a) describe how principles of natural justice were followed and statutory compliances were kept in mind while conducting the proceedings in a fair and impartial manner, (b) document minutes of meetings which contains questions asked by IC and their answers, (c) refer to evidence submitted by either party such as details of emails/ SMSs, etc. which have been relied upon by the IC in arriving at its conclusion.  It is evident from this Order that the report of the IC in this case was reviewed in detail and found to be more than adequate so as to not merit any interference by the Tribunal in either its process of inquiry or basis of its findings.