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ICC can't comment on personal conduct of parties
Bibha Pandey Vs Punjab National Bank and Ors
W.P.(C) 3249/2017 & CM APPL. 14126/2017
About/from the judgment:
The High Court in a progressive judgment delivered on a writ petition by a female employee of Punjab National Bank has held that the jurisdiction of Internal Complaints Committee (ICC) established under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, is limited to allegations of sexual harassment and whether a complaint is made out or not, to that effect. The ICC "cannot make comments on the personal conduct of the parties", the court has held.
The Court observed, "any consensual relationship among adults would not be the concern of the Management or of the ICC, so long as the said relationship does not affect the working and the discipline of the organisation and is not contrary to the Rules or code of conduct binding on the said employees," and said that "moral policing is not the job of the management or the ICC".
The Court was hearing a writ petition preferred by a female employee of Punjab National Bank against the General Manager of the bank in Mumbai. Upon her complaint, the ICC was constituted by the Bank, consisting of 4 members, which concluded that the relationship between the parties was based on mutual consent, and that the allegations of sexual, emotional and mental harassment had not been substantiated by the employee. Thus, while the complaint against the Manager was rejected, the ICC did not stop there but went on to make observations that the "behaviour of the parties had been inappropriate and unbecoming of Officers/Employees" and therefore, it "recommended the Competent Authority to take suitable action" against both the employee and the General Manager.
As a result of this report, a charge-sheet was issued against the complainant employee under Regulation 6 of the Punjab National Bank Officer Employees' (Discipline & Appeal) Regulations, 1977, challenging which the employee moved the present writ. The Court stayed the ICC's recommendation and the consequent charge-sheet, however, the Bank thereafter held up the employee's promotion in view of the pendency of the present petition.
The Court thereafter directed the Bank to independently consider the complainant's candidature for promotion, though the same was to be kept it a sealed cover and not given effect to.
The Bank submitted that though the employee was eligible for promotion, in terms of the rules of the Bank, with disciplinary proceedings pending against an employee, the Bank was bound to keep the promotion in a sealed cover as per its Promotion policy.
Employee submitted that the ICC, upon sexual harassment complaint not being made, can merely close the enquiry. She argued that the recommendation made for taking action due to the alleged "unbecoming"conduct was contrary to Section 13(2) of the Act.
The complainant submitted that she merely prayed for the recommendation made by the ICC to be set aside, and wasn't challenging the conclusion of the ICC for "personal reasons".
Ruling in favor of the petitioner complainant, the court held that if the allegations of sexual harassment or any other form of harassment, as contemplated under the Act, are not proved before the ICC, the ICC can only recommend the employer to not take any action in the particular matter. However, the ICC, in the present case, had gone beyond its statutory mandate, as recognised under Section 13(2) of the Act by giving observations stating that both the parties had indulged in inappropriate/ unbecoming conduct and indiscipline and by further "recommending" the competent authority to take suitable action against them. The court said that giving such a recommendation is beyond the jurisdiction of the ICC.
"If a case of sexual harassment is not made out, the ICC can only conclude that no action is required to be taken. On the other hand, if a case of sexual harassment is made out, then the recommendation of the ICC can only be for taking appropriate action for misconduct, in accordance with the provisions of the service rules as contained within Section 13(2) and 13(4) of the Act. It is not contemplated within the provisions of the Act that while holding that no action is to be taken and the complaint is to be rejected, the ICC can direct for suitable action on the ground that the parties have indulged in an inappropriate conduct. Such a determination and consequential recommendation is beyond the jurisdiction of the ICC," the Court held.
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