The employer has a duty to ensure a harmonious working environment and can terminate the services of an employee found guilty of sexual harassment, in accordance with the provisions of the Sexual Harassment Act.

JUDGMENT, J.

BIREN VAISHNAV

1. Rule, returnable forthwith. Mr. Aditya C. Yagnik, learned advocate waives service of notice of Rule for the respondent No.1 – IMDC Limited while Mr. Manan Bhatt, learned advocate waives service of notice of Rule for respondent No.5.

2. With the consent of the learned advocates appearing for the respective parties, the petition was taken up for its final disposal.

3. In this petition, under Article 226 of the Constitution of India, the petitioner challenges the order dated 21.5.2020 and the order dated 31.8.2020. By the order of 21.5.2020 the services of the petitioner No.1 came to be terminated. On filing an appeal, by the order of 31.8.2020, the termination order was confirmed and the appeal was dismissed.

4. Facts in brief would indicate that the petitioner was working as Assistant Vice President, HR and Administration with the respondent No.1 – IDMC Limited. He had served the Company for about two years. The respondent No.5, one Ms. Ankita Mistri made a complaint to the respondent No.1 on 25.11.2019 under the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal), Act, 2013 (hereinafter referred to as ‘the Act’).

5. Pursuant to the complaint so made, a notice was issued to the petitioner on 29.11.2019 inter alia stating that based on the complaint, being an employee of the Company, the petitioner was asked to explain in writing the charges levelled against him. On response to the notice, the petitioner filed a reply on 9.12.2019 denying the allegations. On 3.1.2020 a detailed reply was filed by the petitioner to the Presiding Officer of the Internal Complaints Committee constituted by the respondent – employer. Based on the inquiry conducted by the Internal Complaints Committee (hereinafter referred to as `the ICC’) constituted under the Sexual Harassment Act, an inquiry was conducted and completed on 22.2.2020. Copy of the inquiry report was supplied to the petitioner on 3.3.2020. Based on the report, which concluded that the petitioner was guilty of the charges of sexual harassment levelled by the respondent No.5, the services of the petitioner were terminated which was confirmed in appeal.

6. Mr. Sharvil Majmudar, learned counsel assisted by Mr.Anshul N. Shah, learned advocate for the petitioner challenging the order of termination and that of the order in appeal made the following submissions:

6.1. The charge-sheet was extremely vague and no details were as to what was the misconduct that the petitioner committed.

6.2. The entire proceedings in the nature of inquiry by the ICC was conducted in violation of principles of natural justice.

6.3. None of the statements made by the witnesses on behalf of the complainant were supplied to the petitioner nor was he allowed to cross examine the witnesses. The entire inquiry report was based on surmises and conjectures.

6.4. If the proceedings of the ICC are read, the burden of proof was shifted on the petitioner to prove his innocence rather than the Committee on the basis of evidence holding the petitioner guilty. The inquiry proceeded on the footing that the petitioner has not produced any evidence in support of his innocence. When in fact it is his guilt that has to be established by the ICC constituted under the Act.

6.5. Reiterating his submission that the inquiry was vitiated by violation of principles of natural justice, Mr. Majmudar would submit that the petitioner was not only allowed not to cross examine the witnesses who were examined on the basis of a complaint of the complainant, but he was not given any opportunity to present witnesses in his favour. He would submit that the audio recordings done at the meeting were not provided to the petitioner and whole inquiry was in violation of the principles of natural justice. The petitioner rather than being given an opportunity to cross examine the witnesses was told by the committee by giving a questionnaire that he may list out the questions for cross examinatio