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The Delhi High Court has held that allowing a person facing a sexual harassment enquiry before a company’s Internal Complaint’s Committee (ICC) to be represented by a “friend” with a “legal background”, who is not registered as an advocate, would be prejudicial to the complainant, who is “without the aid of a legal practitioner or next of friend”.
A single judge bench of Justice Sanjeev Narula, in its judgment dated October 14, held that the intent of rule 7(6) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules is to disallow a legal practitioner from representing the parties at any stage of the proceedings.
The petitioner argued that he is entitled to be represented by “a next friend” before the ICC. He referred to Section 11(3) of the Prevention of Sexual Harassment at Workplace Act, 2013 Act, to submit that for the purpose of making an enquiry, “the ICC is deemed to be vested with powers akin to a civil court under the Code of Civil Procedure, 1908, in respect of matters relating to summoning and examination of the witnesses, etc”.
Under this provision, he is entitled to be represented by a person who is capable of conducting cross-examination of the complainant during the enquiry. He further argued that in case he is found guilty by the ICC, he would be punished with a “direct termination” from his job “without notice”. “With such a harsh consequence, evidencing mechanism thereof should necessarily require that Petitioner should have a right of representation,” the judgment records.
The HC went on to hold that the provision has to be given its due meaning, and cannot be construed in the manner the Petitioner sought to do. “For this court to allow such a request, by ignoring the bar under Rule 7(6), it would have to be restrictively interpreted and the word ‘legal practitioner’ would have to be read in such a manner that it only includes an ‘advocate’ registered under the Advocates Act, 1961 and not a law graduate,” the HC noted.
The petitioner had challenged an email communication of September 22 where his request to engage an advocate was declined. The petitioner then challenged the rules before a division bench of the HC, but withdrew the plea later. He subsequently approached the single judge bench of the HC, where he restricted his prayer for representation by a “person of his choice”.
When the court specifically enquired about the background of the person who the petitioner sought to represent him before the ICC, the court was informed that it would be a person with a legal background so that he can conduct cross-examination of the complainant. “It is indeed baffling that the Petitioner, who is himself a law graduate, which in general parlance would mean an ‘advocate’, wants to take assistance of a next friend, who has legal background but is not registered as an advocate,” the HC observed.
The HC held that if such an interpretation is allowed, “a floodgate of law graduates would pour in”, who may not be enrolled with the bar councils as ‘advocates’ but are still practicing law. The court noted that if this interpretation is allowed, it would create a prejudice for the complainant, whose case is also being considered by the ICC without the aid of the legal practitioner or next friend.
The court further held that even if the enquiry has a far-reaching consequence, it is a domestic enquiry and is not akin to proceedings before a court of law. Dismissing the plea the court held that the standards of proof which are relied upon by the court while allowing a legal representation cannot be relied upon to seek a right of legal representation/advocate before the ICC, when the rules specifically prohibit the same.
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