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ICC to comprise of independent members unrelated to the accused: Delhi HC

Justice Prathiba Singh of the Delhi HC in a revision petition 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/Complainant.
 The matter being heard related to a sexual harassment complaint made by an employee against the ex-Chairman of the Rehabilitation Council of India, in Rashi v. Union of India [W.P. (C) 3396/2019].

The petitioner was a contract employee who alleged that Kamlesh Kumar Pandey, the then Chairman and a Secretary level officer, had sexually harassed her. No action was taken against her complaint and her services were terminated on 03.10.2018. Due to inaction against her complaint, she filed this writ petition directing that the respondents look into the matter and take action according to the law. An Internal Complaint Committee (ICC) was then constituted but several issues subsequently arose, including one member being unable to participate, the ICC Chairman being junior in rank to the accused and also the fact that if the accused was a secretary level officer, the ICC was to be formed by the Cabinet Secretariat.

The counsel for the respondent argued that all requirements under S.4 of the Prevention of Sexual Harassment Act had been met. They also argued that it was not necessary that the Chairperson of the committee had to be senior to the accused, it was sufficient if the Chair was a lady and of senior rank. Further, the accused was doctor serving as a Commissioner and as such, none of the ICC's members had worked under him.

The petitioners contended that the Office Memorandum by the Cabinet Secretariat had been consented to by both parties, and as such, the consent could not be then withdrawn. They also submitted that the appointing authority for any officer at the rank of Joint Secretary or above would be the Appointments Committee of the Cabinet (ACC). As such, under S.4, the ACC would be the employer and they would have to constitute the committee.

The single judge bench looked at the landmark Vishaka & Ors. v. State of Rajasthan & Ors. case, which was a precursor to the Prevention of Sexual Harassment Act, and guidelines were issued regarding the composition of the committee, speedy redressal for victims and impartial disposal of cases.

Justice Singh looked into the guidelines along with several other judgments and formulated several principles regarding the composition and conduct of the ICC, including:
  1. Members of the ICC must be impartial i.e. they should not have any personal knowledge or interest in the case or be connected to the case in any manner
  2. Members of the ICC should not have conflict with any of the parties involved;
  3. Complete neutrality has to be observed in the proceedings;
  4. Objectivity needs to be maintained in the conduct of the proceedings;
  5. There should be no cause for bias for or against any of the parties;
  6. Members of the ICC ought to possess blemish-less credentials;
  7. Independent members are needed on the ICC to aid, advise and assist the ICC in a fair and impartial manner;
  8. An independent person should actually be someone external and cannot, for example, be the panel lawyer of a bank in a situation where the Complainant and the Respondent are employees of the bank;
  9. There should be no undue pressure and influence on the ICC from senior levels;
  10. 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;

In line with these principles, the Court found that:
the ICC ought to be an independent and unbiased body. External members are appointed on the ICC to ensure neutrality of the ICC. In case complaints are made against senior level officers working in ministries/departments, who have enormous influence over their subordinates, it is to be ensured that the complaints are inquired into in a completely unbiased manner.

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 thus disposed of the petition by directing that the Cabinet Secretariat was to constitute an unbiased and impartial Committee to investigate the petitioner's claims, within four weeks of the date of judgment.

End-Notes:
  1. https://drive.google.com/file/d/14WodTEgylkYjV0jEUIIHvSNhheJ_8sS7/view?usp=sharing
Written By: Prime Legal Law Firm
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