Air India Limited v L.S. Sibu and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY ,THE 12TH DAY OF OCTOBER 2018 / 20TH ASWINA, 1940** ## **WA.No. 1713 of 2016** **AGAINST THE ORDER/JUDGMENT IN WPC 4001/2016 of HIGH COURT OF KERALA DATED 08-04-2016** ## **APPELLANT/S:** |**1**|**AIR INDIA LIMITED,**| |---|---| ||**AIRLINES HOUSE, 113, GURUDWARA RAKABGANJ ROAD,**| ||**NEW DELHI 110 001, REPRESENTED BY ITS CHAIRMAN AND**| ||**MANAGING DIRECTOR.**| |**2**|**THE INTERNAL COMPLAINTS COMMITTEE**| ||**AIR INDIA LTD (SOUTHERN REGION),**| ||**AIRLINES HOUSE, MEENAMBAKKAM, CHENNAI 27,**| ||**HEADED BY ITS CHAIRPERSON.**| |**3**|**THE EXECUTIVE DIRECTOR,**| ||**SOUTHERN REGION, AIR INDIA LIMITED, AIRLINES HOUSE,**| ||**MEENAMBAKKAM, CHENNAI 27.**| ||**BY ADV. SRI.P.BENNY THOMAS**| _WA 1713/2016_ 2 ## **RESPONDENT/S:** |**1**|**L.S.SIBU**| |---|---| ||**OFFICER-APRON GROUND SERVICES DEPARTMENT (GSD),**| ||**AIR INDIA, INTERNATIONAL AIRPORT II, CHACKAI,**| ||**THIRUVANANTHAPURAM 695 024.**| |**2**|**AI-SATS, M/S AIR INDIA SATS AIRPORT SERVICES (P) LTD.**| ||**INTERNATIONAL AIRPORT, THIRUVANANTHAPURAM,**| ||**REPRESENTED BY ITS CHAIRMAN, AIR LINES HOUSE, 13,**| ||**GURUDWARA, RAKABGUNJ ROAD, NEW DELHI 110 001.**| |**3**|**THE COMMISSIONER OF POLICE**| ||**TRIVANDRUM CITY, OFFICE OF THE COMMISSIONER OF**| ||**POLICE, VAZHUTHACAUD, THIRUVANANTHAPURAM 695 001.**| ||**SMT.M.C.SINY**| ||**SMT.SMITHA S.PILLAI**| ||**SRI.CYRIAC TOMM.P.**| ||**SRI.SHAMEEM AHAMED-K/2626/1999**| ## **OTHER PRESENT:** **SRI RENIL ANTO SR GP** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** _WA 1713/2016_ 3 ## **JUDGMENT** ## Vinod Chandran, J. The Appeal is against the judgment of the learned Single Judge, which set aside the preliminary report made under the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 (for brevity “the Act”). The learned Senior Counsel appearing for the 1[st] respondent submits that there is no room for a preliminary report under the Act and there can only be a report; which has to determine the guilt or otherwise of the delinquent and decide on the action to be taken by the Disciplinary Authority. This incidentally is the bone of contention in the appeal, wherein the appellant employer insists that the report is only a preliminary one based on the _prima facie_ findings in which a fullfledged enquiry will be conducted, wherein the respondent-delinquent will be participated. 2. The issue arose when 17 female employees of M/s Air India Sats Airport Services (P) Ltd. (AI-SATS), the 2[nd] respondent, made a complaint to their controlling officer about the alleged sexual harassment of the 1[st] _WA 1713/2016_ 4 respondent, who is an employee of the 1[st] appellant herein. The learned Counsel for the appellants also submits that the complaint made to AI-SATS was transmitted to them through the Airport Authority of India. Finding the allegations to be covered under the Act, an Internal Complaints Committee (ICC) was constituted under the Act and the matter was placed before it. The ICC enquired into the matter under Section 11 of the Act. The 1[st] respondent, against whom allegations were raised, was not fully participated in the enquiry; which was the ground on which the 1[st] respondent challenged the same in the writ petition. 3. The learned Counsel for the appellants submits that his presence in the enquiry is evident from Annexure R1(a) report produced in the Writ Petition. A reading of the report indicates that the proceedings commenced on 12.05.2015, after the complaint was received as forwarded by the General Manager (Personnel). The various proceedings taken in pursuance of the enquiry are also seen, including the statement having been taken from one of the complainants, but without the presence of the _WA 1713/2016_ 5 delinquent. The one complainant, who came forward before the ICC, was also found to be visibly shaken and frightened and only after pacifying her she came out with her version which _prima facie_ implicated the 1[st] respondent. The statement was recorded in the absence of the 1[st] respondent and he was summoned before the ICC on 12.11.2015 and deposed on 19.11.2015. On 20.11.2015 the report was submitted. Though the 1[st] respondent had been summoned, we see that the same was at the fag end of the proceedings and the report concluded that the allegations of the complainants have been corroborated and the ICC conforms that a _prima facie_ case of sexual harassment exists. Hence there was a reference for taking appropriate disciplinary proceedings in pursuance of the service rules. 4. The appellants contend that a preliminary enquiry was necessitated in the context of Annexure R1(b) office memorandum issued by the Government of India, which speaks of a charge sheet being issued after the report is submitted by the ICC. The understanding of the appellants is that a preliminary enquiry has to be _WA 1713/2016_ 6 conducted by the ICC and on finding _prima facie_ justification of the allegations made of sexual harassment, the Disciplinary Authority should be given a report on that count based on which the charge sheet will be issued by the Disciplinary Authority. The domestic enquiry would be proceeded with by the Disciplinary Authority after such report from the ICC and then there would be punishment imposed based on the findings in the disciplinary enquiry. 5. The learned Single Judge found, according to us rightly, that the procedure as laid down by the office memorandum is in contravention of the statute and hence cannot be held to be valid. Looking at the Act and the Central Civil Services (Classification, Control & Appeal) Rules, the learned Single Judge found that the enquiry conducted under Section 11 of the Act is a full-fledged enquiry, leading to a finding of guilt or otherwise of the delinquent against whom charge of sexual harassment is made. The learned Single Judge also referred to _**Medha Kotwal Lele v. Union of India, (2013) 1 SCC 312**_ . _WA 1713/2016_ 7 6. We are surprised that even then the Air India, a public sector undertaking, sought to file an appeal again relying on the office memorandum and seeking to justify the procedure adopted by them of a preliminary enquiry conducted behind the back of the delinquent employee. We need only refer to _**Medha Kotwal Lele**_ and the directions issued therein, after hearing the learned Attorney General for Union of India, which reads thus:- _“2. Notice had been issued to several parties including the Governments concerned and on getting appropriate responses from them and now after hearing the learned Attorney General for UOI and the learned counsel, we direct as follows:_ _“Complaints Committee as envisaged by the Supreme Court in its judgment in Vishaka case, (1997) 6 SCC 241: 1997 SCC (Cri) 932, at p.253, will be deemed to be an inquiry authority for the purposes of the Central Civil Services (Conduct) Rules, 1964 (hereinafter called the CCS Rules) and the report of the Complaints Committee shall be deemed to be an inquiry report under the CCS Rules. Thereafter the disciplinary authority will act on the report in accordance with the Rules.”_ It was also directed that similar amendments be carried out in the Industrial Employment (Standing Orders) Rules. In the teeth of the specific directions issued by the Hon'ble Supreme Court under Section 141, there is no _WA 1713/2016_ 8 scope for the office memorandum or the procedure brought therein to survive. 7. Hence, going by the directions of the Hon'ble Supreme Court, the enquiry conducted by the ICC should be a full-fledged enquiry complying with the principles of natural justice. However, we endorse the findings of the learned Single Judge, insofar as the cross-examination of the complainant, which has to be done after an assessment of their mental state and also adopting such measures as would not put the complainant to further jeopardy, providing an amicable atmosphere which would put the victim at ease and capable of freely deposing without fear and being subjected to any further harassment. At the same time, it has to be ensured that the delinquent employee is afforded a proper opportunity to elicit answers in his defence. The ICC could arrange the chief and cross-examinations being carried out through electronic systems, without the victim having to face the alleged aggressor. As of now, we are of the opinion that the learned Single Judge was perfectly justified in having set aside the report, which was prepared without _WA 1713/2016_ 9 following a fair procedure. The Committee will have to comply with the impugned judgment, and proceed with the enquiry as contemplated under the Act and conclude it either way. 8. In this context, we also have to notice the submission made by the learned Senior Counsel on behalf of the 1[st] respondent, about the subsequent events, which according to the first respondent belies the factum of the complaint said to have been raised by 17 female employees of AI-SATS. It is the specific submission that the complaints were found to be forged, in an investigation conducted on the basis of a private complaint lodged by the 1[st] respondent. The 1[st] respondent has specifically alleged that the complaints were on the instigation of the Vice-President of AI-SATS, who was in inimical terms with the 1[st] respondent for reason of certain activities of AI-SATS having been brought to the notice of the Air India as also the C.B.I. and Central Vigilance Commissioner. There is a criminal complaint filed against the said Vice-President, who is no more in the service of the AI-SATS, wherein the police had, after _WA 1713/2016_ 10 investigation, removed the said person from the array of accused. Original Petition is filed as O.P.(Crl) No.193/2018 against the removal of the 1[st] respondent from the FIR. It is submitted that there are contradictory statements filed in the said Original Petition by the investigating officer and it would indicate that the entire allegations are cooked up and are at the instigation of the higher-ups in AI-SATS. 9. We need not go into all these allegations at this stage, since we are only concerned with the proceedings taken by the ICC on the complaints levelled by 17 female employees of AI-SATS. We need just notice that only one complainant turned up before the ICC as per Annexure R1(a) report; but who looked visibly upset and could depose only after sustained pacification. The fact that only one complainant turned up is inconsequential as the graveness of the charge of sexual harassment even if against one individual has to be treated with all seriousness. Then there is a reservation on the part of the victims to face the rigour of a legal proceeding, even when carried out in-house; which also cannot be _WA 1713/2016_ 11 discounted. However, we cannot also ignore the fact that considerable time has elapsed and there are reports that many of the said female employees deny having made such a complaint. Taking all the circumstances into consideration, we are of the opinion that the ICC concerned should first summon the 17 female employees and take individual statements from them, in which proceedings the 1[st] respondent need not be participated. If on such statements, there is an allegation of sexual harassment, then appropriate notice shall be issued to the 1[st] respondent and a full-fledged enquiry conducted under Section 11 and further proceedings taken under Section 13 in accordance with the directions in _**Medha Kotwal Lele**_ after issuing a charge sheet. At the enquiry, the victim need not be directed to again repeat the statement and could as well be asked to swear to the statement already recorded and then the delinquent permitted to cross-examine, as per the procedure delineated herein above. 10. The Writ Appeal is so disposed of. We make it clear that we have not said anything on the allegation of _WA 1713/2016_ 12 sexual harassment either in favour of the complainants or in favour of the 1[st] respondent. The 17 employees if not in the employment of the AI-SATS at this point, the ICC shall get their residential addresses from AI-SATS and issue notice by registered post and after service, if they do not appear, further proceedings can be closed. We also make it clear that we have not made any observations on the crime registered at the instance of the 1[st] respondent by the Valiyathura Police Station as Crime No.381/2016, which shall be proceeded with in accordance with law. The ICC shall, endeavour to carry out the enquiry and conclude the same within six months. The Disciplinary Authority shall carry out the directions of the ICC with respect to the course of action to be taken ensuring that the punishment imposed is in accordance with the service rules. The parties shall suffer their respective costs. **Sd/K.VINOD CHANDRAN JUDGE Sd/ASHOK MENON JUDGE**