The petition was sought to review the order of this Hon’ble Court with regards to the criteria of constitution of ICC in cases of sexual harassment complaints against high ranking officers of the level of Joint Secretary and above.
The Hon’ble High Court of Delhi held that when allegations are made against senior level officers, the same should be inquired into by a Committee appointed not at the level of the Department but someone external and independent and therefore directed that a Committee by Cabinet Secretariat be constituted, consisting of such persons who are independent and unbiased.
Legal Points :
A review petition was filed against the order of the tribunal which held “The ICC shall now be constituted strictly in accordance with the office memorandum dated 2nd February, 2009 – issued by the Government of India Ministry of Personnel, Public Grievances and Pensions since the complaint is against a Secretary level officer. The inquiry, in terms of the judgement of the Division Bench shall be an inquiry under Rule 14 of the CCS (CAA) Rules, 1964 read with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.”
The Union of India (Respondent) states that constitution of the ICC for a Secretary level officer in terms of office memorandum dated 26th September, 2008 was prior to the enactment of the POSH Act, 2013. Since POSH Act, 2013 has come into force ICC would only be constituted in terms of Section 4 of the POSH Act and there is no requirement that the same should be constituted by the Cabinet Secretariat.
The petitioner states there is no error of law in the direction of the tribunal, which simply asked for re-constitution of the ICC in terms of office memorandum dated 2nd February, 2009 with the consent of the parties and consent cannot be withdrawn in this manner. The appointing authority for any officer of the level of Joint Secretary and above is the Appointments Committee of the Cabinet and thus, under Section 4, the employer would be the ACC. It is thus submitted that since the ACC is the employer, the Committee also ought to be constituted by the ACC.
Conclusion:
When the cases of sexual harassment at workplace are to be inquired against senior officials of the level of Joint Secretary and above, then ICC to be constituted for the purpose of enquiry must be constituted bythe Cabinet Secretariat, consisting of such persons who are independent and unbiased.
The reason is that in such cases when the ICC consists of employees who are below the rank of the accused there are chances of biasedness and undue influence. To ensure that a level of fairness is maintained during the enquiry, the Court was of the opinion, that the same should be inquired into by a Committee appointed not at the level of the Department but someone external and independent.
DUCTUS EDGE 