Ensuring Fairness: The Role of Garden Leave as an Interim Measure in POSH Inquiries

In certain circumstances, the IC recommends that a Respondent in a POSH inquiry be asked to proceed on garden leave/administrative leave/leave with pay, pending closure of the inquiry to ensure a fair inquiry. Particularly in cases wherein the Respondent is in a senior position or the Manager of the Complainant, there is often a fear of retaliation, intimidation or concerns of possible tampering of evidence, critical to the inquiry. In order to ensure the comfort of the Complainant and witnesses to depose without any fear, asking the Respondent to proceed on leave/remove access to official email communications, etc. are steps taken by the IC to ensure a fair and neutral inquiry without the presence of the Respondent in the office.

While legal provisions and case law provide for the provision of suspension, I would advise against suspension, instead ask the Respondent to proceed on paid leave as an interim measure.

Section 12 (1) of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act and Rules, 2013 (“Law”) provides that during the pendency of an inquiry, on a written request made by the aggrieved woman, the Internal Committee or the Local Committee, as the case may be, may recommend to the employer to:

1. transfer the aggrieved woman or the respondent to any other workplace; or

2. grant leave to the aggrieved woman up to a period of three months: or

3. grant such other relief to the aggrieved woman as may be prescribed.

Rule 8 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act and Rules, 2013 provides that the Complaints Committee at the written request of the aggrieved woman may recommend to the employer to:

1. restrain the respondent from reporting on the work performance of the aggrieved woman or writing her confidential report, and assign the same to another officer;

2. restrain the respondent in case of an educational institution from supervising any academic activity of the aggrieved woman.

Interim Reliefs:

Law provides for complainant to request for interim reliefs during pendency of inquiry such as leave, transfer, change of reporting line and restraining the respondent from writing their confidential report like the appraisal report. It is important to note that IC can recommend interim reliefs only at the written request of the complainant and not of their own accord. Often, IC may sense complainant’s discomfort and ask the person to go on leave or transfer the complainant. Though the recommendation is stemming from a place of concern, it can be perceived by complainant as retaliation by IC, if not requested by complainant.

Further, suspension of respondent during pendency of inquiry is commonly recommended by IC even though it is not categorically specified under the Law.

Interim measures to prevent aggravation of the situation as may be required. Where there is apprehension that the Respondent may tamper with witnesses or evidence or make it difficult for the Complainant to depose without fear.

Case law and statutory provisions supporting the IC interim orders of asking the Respondent to go on leave during pendency of inquiry?

P. S. Malik vs High Court of Delhi on 21 August, 2019. The Full Court of the High court is in no manner precluded from initiating disciplinary inquiry against the petitioner and placing the petitioner under suspension on being satisfied that sufficient material existed. The High Court in its meeting dated 19.07.2016 has resolved to send the complaint of the employee to the Internal Complaints Committee and the Internal Complaints Committee having opined that inquiry need to be held, further steps were taken in accordance with Act, 2013. We, thus, are of the view that there is no error in the decision of the Full Court dated 13.07.2016 to suspend the petitioner and initiate the inquiry proceedings against the petitioner.

In the case of Ms. Pi and Ors. vs. Jawaharlal Nehru University and Ors., decided by the High Court of Delhi at New Delhi on 29 May, 2018, a similar question was addressed. The question that arose for consideration was whether the respondent “should be asked to remove himself from the campus till such time the matter is inquired into by the concerned authority.” The petitioners/complainants contended that notwithstanding the fact that the petitioners/complainants had taken recourse to the criminal process, Jawaharlal Nehru University  (“JNU”) was duty bound under Law to provide a safe working environment at workplace which would include safety from persons who would come in contact at such workplace. They, therefore, argued that JNU was obliged to “provide a safe working environment to the petitioners/complainants which would firewall them against any intrusion that may be caused by the presence” of respondent. In this regard, Rule 8 of the Law was also referred to and argued that the “principle analogous thereto could be applied to the present case, notwithstanding the fact that the petitioners/complainants had not taken recourse to the ICC.” Therefore, Section 30 of JNU Act, 1996 was referred to to argue that based on this provision, the VC had power to deal with such “misconduct” and whenever found necessary, this power had been exercised in the past to suspend the delinquent.

The Court held that “in view of the provision of Section 9 (a) of the 2013 Act, JNU is duty bound to provide a safe working environment to the complainants/petitioners, even if they do not take recourse to the ICC route to seek redressal.” It went on to further say that there is “no finding, as yet, returned qua the complaints made” against respondent. It noted that the respondent was also supervising other students other than the petitioners/complainants and noted the respondent’s plea that “measures other than those which have been already taken qua him would apart from anything else, impact his students, family and his reputation irreversibly.” The Court looked at this from the perspective of the petitioners/complainants as well and noted that, “in every infraction of law, there is always, unfortunately, some amount of collateral damage. The administrative or quasi judicial or even judicial authority while ruling on such like matter need to bear in mind that the victim who is possibly vulnerable and weak, also needs protection. It takes a lot for the victim to bare her life to public at large.”

After looking at all the facts, the Court held that separate supervisors should be appointed for petitioners/complainants to enable them to take their research work forward. It also held that respondent should be given, if necessary, a separate laboratory to conduct his work and he “shall have no contact whatsoever with the petitioners/complainants or any potential witnesses.” In case of any infraction, VC should consider removal of respondent from campus. The Court also instructed the committee (ICC in this case) to “examine the material available on record” and, thereafter, reach a prima facie finding as to whether respondent’s conduct is such that it merits “his immediate suspension and / or removal from campus” and if a case of misconduct is made out, make suitable recommendations to the VC.

It must be noted that in this case, the Court did not hold that the respondent should be suspended or asked to go on leave during pendency of inquiry. What it has said is that while the complaint is being inquired into by the committee, the respondent should not interact or interfere with the complainants absolutely and in case the respondent still does so, only then employer should consider removing respondent from the campus.

However, in another case, Ashish Kumar Das vs. North Eastern Hill University and Ors., respondent was placed under suspension with immediate effect. This was challenged by Ashish Kumar Das (“Petitioner”) and a single Judge of the High Court of Meghalaya on 30.06.2014 held that: the concerned respondents would furnish the copies of the documents mentioned in the Petitioner’s representation; the Petitioner would be allowed to submit his explanation after receiving such copies; after receiving the Petitioner’s explanation, the University would decide if any inquiry was requisite; the inquiry, if initiated, would be completed within three months while complying with the principles of natural justice after serving the article of charge etc. of initiation; and lastly, in case of inquiry being not completed within three months, the Petitioner would be reinstated without prejudicing the inquiry.

This was further challenged and the Meghalaya High Court, (larger bench) on 30th August, 2017 held that it had no hesitation in holding that the Petitioner was not entitled to question the order of suspension and initiation of inquiry at that stage. In yet another case, State of Maharashtra and Ors. vs. Hiralal Rama Jadhav, where service rules were also applicable to the respondent, respondent was suspended under Rule 4 of the D & A Rules pending inquiry. This was challenged and the tribunal held that the order of suspension was premature. When the matter reached the High Court of Bombay, it held that the Tribunal was in error in coming to the conclusion that the order of the suspension was premature.

Industrial Employment (Standing Orders) Act, 1946 The Industrial Employment (Standing Orders) Act, (“Standing Orders Act”) is a central enactment which, inter alia, requires an employer to define and publish uniform conditions of employment in the form of standing orders.

As per the statute, the standing orders should contain terms of employment including, hours of work, wage rates, shift working, attendance and late coming, provision for leaves and holidays and termination or suspension/dismissal of employees.

At the first instance, the Standing Orders Act is applicable to ‘industrial establishments employing a minimum of 100 workmen.

The Standing Orders Act prescribes Model Standing Orders, serving as guidelines for employers and in the event that an employer has not framed and certified its own standing orders, the provisions of the Model Standing Orders shall be applicable. 

This law is proposed to be replaced by the Code on Industrial Relations, 2020. The Model Standing Orders prescribed under the Industrial Employment (Standing Orders) Central Rules, 1996 (“Standing Orders Rules”) prescribe a list of acts constituting ‘misconduct’ and specifically includes sexual harassment.

The Model Standing Orders not only defines ‘sexual harassment’ in line with the definition under the Vishaka Judgment, but also envisages the requirement to set up a complaints committee for redressal of grievances pertaining to workplace sexual harassment. It is interesting to note that ‘sexual harassment’ is not limited to women under the Standing Orders Rules.

Service Rules: Law states that the process of inquiry has to be done according to the service rules of the organization. In absence of such rules, the inquiry could be conducted as per the Law solely.

The placement of a respondent on garden leave during a POSH inquiry is a critical interim measure to ensure a fair and unbiased process. While suspension is legally permissible, it is often more prudent to recommend paid leave to balance fairness and due process. Judicial precedents support the IC’s authority in recommending such actions, reinforcing the importance of protective interim measures to safeguard complainants and witnesses while ensuring the integrity of the inquiry.

Sonal Mattoo

Advocate

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