Recently, in a judgment dated 1^st July, 2019, the Karnataka High Court in the case of Suman Saurabh v. The Internal Complaints Committee, Sexual Harassment of Woment at Workplace and Ors. held that second inquiry by an internal committee on the same charges under 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 court can review it) to quash the order/notice dated 23.06.2014 issued by the first respondent (“IC”) and to declare that second respondent (“Company”) has no power to hold second inquiry in respect of the same charges. The Petitioner received an e-mail on 29.01.2014 from an employee of HR Department requesting him to attend a meeting on the same day. The meeting however turned out to be an inquiry for alleged sexual harassment. He was forced to resign from his services upon 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 e-mail to his manager.

The Petitioner’s resignation was however accepted on 31.01.2014 and he was to be relieved from service on 25.03.2014 but he was subjected to further inquiry on 03.02.2014 and then asked to sign documents prepared by the IC. He declined and informed the same to 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 15.05.2014, enclosing a report dated 11.05.2014 (“Recommendation”) holding him guilty of some of the charges of alleged sexual harassment, pursuant to which the IC recommended for termination of his service. After receipt of e-mail, 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 23.06.2014 initiating fresh investigation/inquiry of the complaint. Hence, the Petitioner approached the Court.

Arguments: The contention of the Company, was that the receipt of the complaint relating to the sexual harassment against the Petitioner was received on 21.01.2014, 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 intension 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 29.01.2014. After an e-mail dated 22.05.2014 received by the Petitioner alleging the process prescribed under the Law was violated during the inquiry proceedings, the decision to conduct fresh inquiry/investigation was made, without any conclusion or inference being drawn from the past investigation proceedings.

Learned counsel for the Petitioner contended that the decision issued by the IC to hold fresh inquiry/investigation is 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 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 for termination of services. Admittedly, the said recommendation was not implemented. When things stood thus, very strangely the IC issued one more notice communicating that IC has initiated fresh investigation on 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 e-mail received by the Petitioner, IC proceeded to initiate 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 fresh inquiry or if it wants to provide an opportunity to the Petitioner on the basis of an e-mail request made by him, the IC in all fairness ought to have dropped the proceedings if they had violated procedure as contemplated. The proceedings had not been dropped, recommendation made against the Petitioner is still hanging on his head. In the meanwhile, initiating 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, on the same complaint is impermissible. Admittedly, the recommendation made by the IC is still pending for adjudication and the initiation of 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.

– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner Child Safety at Work