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Prevention of Sexual Harassment for Women at Workplace

Sexual harassment at a workplace is considered violation of women's right to equality, life and liberty. It creates an insecure and hostile work environment, which discourage women's participation in work, thereby adversely affecting their social and economic empowerment and the goal of inclusive growth. With this idea the legislature formulated the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.

POSH Act is enacted to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaint of sexual harassment and for matters connected therewith or incidental thereto.

The POSH Act came into force as with more and more women joining the workforce should be ensured of safe working environment. The said act provides for the provisions to protect every woman from any act of sexual harassment irrespective of whether such woman is employed or not.

The need for such legislation was observed first time by the Supreme Court, in Vishaka v State of Rajasthan. In the absence of any law at that time providing measures to check the evil of sexual harassment of working women, the Supreme Court, in exercise of power available under Article 32 of the Constitution, framed guidelines to be followed at all workplaces or institutions, until a legislation is enacted for the purpose.

The Supreme Court of India reaffirmed that sexual harassment at workplace is a form of discrimination against women and recognised that it violates the constitution right to equality and provided guidelines to address this issue pending the enactment of a suitable legislation.

It was thus proposed to enact a comprehensive legislation to provide for safe and secure and enabling safe and secure working environment to every woman.

What Is Sexual Harassment?

To understand what constitutes Sexual Harassment:

in Shanta Kumar vs CSIR, (Delhi High Court) wherein the petitioner was working in the laboratory and the respondent entered and stopped all the machines and pushed the petitioner out of the laboratory and locked it. The Petitioner alleged that the respondent used derogatory language.

An enquiry was conducted and the same was also challenged before the High Court and the Delhi High Court has held that "undoubtedly, physical contact or advances would constitute sexual harassment provided such physical contact is a part of the sexually determined behaviour. ...a physical contact which has no undertone of a sexual nature and is not occasioned by the gender of the complainant may not necessarily amount to sexual harassment."

Sexual Harassment has been defined under Section 2(n) of the act which states as:
Includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:
  1. Physical contact and advances; or
  2. A demand or request for sexual favours; or
  3. Making sexually coloured remarks; or
  4. showing pornography; or
  5. any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

Important Features Of The Act:

  1. It envisages the setting up of Internal Complaints Committee under Section 4 of the Act that at every office of the organisation or institution at every administrative units or offices having more than 10 workers, to hear and redress complaints pertaining to sexual harassment. Where the number of employees are less than 10, the Act provide for setting up of Local Committee in every district by the District Officer under Section 5,6, 7 & 8 of the act. The committee while inquiring into such complaint shall have the same power as vested in a civil court.
    By the Replacing and Amendment Act of 2016 there were certain amendments made in the POSH Act and they are:
    1. for the words "Local Complaints Committee", wherever they occur, the words "Local Committee" shall be substituted;
    2. for the words "Internal Complaints Committee", wherever they occur, the words "Internal Committee" shall be substituted.
  2. What Amounts To Sexual Harassment

    The act under Section 3(2) provides for the circumstances under which an act may amount to sexual harassment. These are:
    1. Implied or explicit promise of preferential treatment in her employment; or
    2. Implied or explicit threat of determination treatment in her employment; or
    3. Implied or explicit threat about her present or future employment status; or
    4. Interference with her work or creating an intimidating or offensive or hostile work; or
    5. Humiliating treatment likely to affect her health or safety.
  3. Types of Sexual Harassment

    There are two types of Sexual Harassment i.e. Quid Pro Quo and Hostile Work Environment Sexual Harassment, regardless of which type it is, it can be experienced by a person of any gender. Additionally, the victim and the perpetrator can either be of the same sex, or of a different sex.

    1. a Quid Pro Quo

      Normally this type of sexual harassment involves a person who acts as a supervisor to other employees asking them to do sexual favour for them in exchange for some type of employment benefit.
      For Example: When a supervising employee requests that a lower ranked employee do some kind of sexual favour for them and in return the supervising employee will then receive a perk, such as extra pay, a higher4-ranking position, or more seniority within the company.
    2. Hostile Work Environment Sexual Harassment

      When someone who is working at the company does any of the acts which acts impacts ion the ability of an employee to do their job properly like:
      1. Makes intimidating or threatening comments,
      2. Repeatedly making dirty jokes or sexual stories,
      3. Repeated sexual advances, or
      4. Creating images, statues, pictures, dolls or icons that are sexual in nature or have a sexual undertone to them etc.
  4. An aggrieved woman can file a written compliant to ICC/LC under Section 9 of the act from three months from the date of the incident within three months from the last such incident. However, any delay in filing the complaint can be condoned by the committee upto further three months. In case of physical or mental incapability of the aggrieved woman, her legal heirs or such other person as described in Rule 6 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013( the Rules) may make a complaint.
  5. Under Section 10 of the act the ICC/LC may before initiating an inquiry take steps to settle the matter through conciliation and when the settlement is arrived no further inquiry is conducted. If in case the settlement does not arrive, the committee shall proceed further with the inquiry.
  6. In case of a domestic worker, the Local Committee shall, if prima facie case exists, shall forward the complaint to the police under Section 11 within a period of seven days for registering the case under Section 509(Intentional insult with intent to provoke breach of the peace) of IPC or any other relevant provisions of the said code where applicable. Principles of natural justice is followed and both the parties are heard and opportunity is given to make representations against the findings of the committee.
  7. Under Section 11(3) for the purpose of making an inquiry, the committee shall have the same powers as are vested in a civil court. The committee has to complete the inquiry within a period of 90 days. Under Section 12 the committee can give certain interim reliefs to the aggrieved woman during the pendency of the inquiry.
  8. Under Section 13 the committee on completion of the inquiry should provide the report of its findings to the employer/ District Officer and the concerned parties. If the allegations are proved the committee recommend the employer/district Officer to take action in accordance with Section 15 of the act.
  9. It is also too be noted that If any women in any stage files false or malicious complaint or gives false evidence than the committee can recommend to the employer or District Officer to take action in accordance with the provisions of service rules or where no such service rules exist, in such manner as prescribed in Rule 10(Action for false or malicious complaint or false evidence) of the Rules the said provision is brought under Section 14 of the act.
  10. Under Section 16 there is a prohibition of identity of the aggrieved women, respondent or the witness who has filed the complaint under Section 9, the identity and address or any information relating to conciliation and inquiry proceedings, recommendations of the IC of the LC, or the action taken by the employer or the District Officer shall not be published or made known to public, press media in any manner. The Penalty for the same has been made out under Section 17 of the act.
  11. Where Can The Appeal Be Filed?

    An appeal under Section 18 can be filed against the recommendations made by the committee before the Court or the Tribunal, within 90 days from the recommendations in accordance with service rules and in absence of service rules, to the Appellate Authority under Section 2 of the Industrial employment (Standing Orders) Act, 1946.
  12. What Amounts To Sexual Harassment: Duties Of The Employer And The District Officer

    POSH act lays down certain duties of the employer and the District Officer under Section 19 and 20 which are:
    1. Creating awareness on sexual harassment at workplace,
    2. Providing for the safe working environment, organising workshops,
    3. Sensitize the employees,
    4. Initiate actions for sexual harassment
    5. Assist committee in conducting the inquiry,
    6. Act upon the recommendations of the committee,
    7. Monitor timely submissions of reports of the committee etc.
The non-compliance of the provisions of the act by the employer may result in fine which may extend to Rs.50,000/- and also can lead to cancellation of the licence or withdrawal, or non-renewal, or approval, or cancellation of the registration, as the case may be.

Powers And Duties Of Appropriate Government

  1. Who is Appropriate Government?

    Under Section 2(b)of the act it specifies as to who is appropriate government, according to which State Government or the Central Government shall be the appropriate government as the case may be.

    Section 2(a) of the Standing Orders Act would indicate that appellate authority would mean the authority appointed by the appropriate Government by notification in the Official gazette to exercise functions of the Appellate Authority under the act in such area as may be specified in the notification.
  2. Duties

    1. The appropriate government under Section 23 has to monitor the implementation of the act and maintain the record of the cases filed and disposed off.
    2. Should educate, provide for relevant information, training materials, and organise awareness programmes for protection against sexual harassment (Section 24).
  3. Powers (Section 25)

    1. Can call upon any employer or District Officer to furnish in writing about the sexual harassment if required,
    2. Authorise any officer to make inspection of the record and workplace in relation to sexual harassment, who has to submit the report within the time as prescribed.
    3. The central government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act (Section 28).

Judicial Aspects

The judiciary has with time to time has brought the law in to place by passing the judgments, some of the judgments passed by the Hon'ble High court of Karnataka with regard to Sexual Harassment of Women at workplace are brought hereunder:

Can Local Committee reject the complaint on the bases of jurisdiction?

  1. W.P No. 47537/2015 in Mrs. Anita Ravindra G R. Vs. Sexual Harassment Complaints Committee and Women & Child Welfare Commission and Ors.

    The petitioner who is employed in the institution which is a government undertaking filed the complaint for Sexual Harassment. As there was no IC as required under Section 4 of the Act, the Petitioner approached the IC (local committee) under Section 6 of the Act. The said complaint was not considered. The Petitioner thus filed another complaint, the lC rejected the same saying it had no jurisdiction.

    Court Held:
    The Court in the above matter held that it is for the committee to address the complaint specifically and give reasons for forming an opinion that it is without jurisdiction. If it is found that it has the jurisdiction, the committee shall address the complaint on merits and dispose of the same in accordance with law and expedition.
  2. Can Order Of Termination be Challenged?

    W.P No. 23713/2016 Smita Arora v. Chief Executive Officer and Ors.

    In the above case the Petitioner had filed writ petition seeking to quash the ICC Report and cancel the order of termination letter. And the court with regard to order of termination held that However, petitioner would be at liberty to challenge the order of termination. And with regard to quashing of the ICC Report Court held that the report of IDD should be challenged before the appropriate forum and no opinion is expressed in that regard

    Conclusion of the Order:
    Thus, the court in the above case has made it clear that the aggrieved person can file a writ petition seeking to quash the order of termination before the Hon'ble High Court. Whereas, the report of the ICC has to be challenged before the Appropriate Authority and not directly before the High Court.

    1. Can Writ be filed when the alternative remedy is available?
      The question which arose before the court in the above case is can writ petition is liable to be dismissed on the ground that the petitioner is having alternative remedy available under the act namely, petitioner can file an appeal under section 18 of the act.

      Court Held:
      One can prefer an appeal indicated under Section 18 of the act to the appellate authority notified under Section 2(a) of the Industrial Employment (Standing Orders) Act, 1946 which indicates that the ‘appellate authority' would mean the authority appointed by the appropriate Government by notification in the Official Gazette to exercise functions of an appellate authority under the act in such area as may be specified in the notification.
    2. When does the appellate authority comes into existence?
      The court in the above case has made it clear that the appellate authority comes into existence when the appropriate Government either State Government or Central Government as defined under Section (b) of the POSH Act issued such notification specifying thereunder the appellate authority, it cannot be said that such appellate authority is not in existence.
  3. W.P No. 55956/2016 Sri M Dhanraj vs. M/s. Hindustan Aeronatics ltd and Another.
    In the above case a complaint as per section 9of the POSH act has been filed against the Petitioner and according to which an enquiry was conducted as per section 11 of the act by the ICC constituted under section4of the act. In the said inquiry the petitioner was held liable for the Sexual Harassment, on such conclusion second show cause notice was issued for which the petitioner replied. The 1st respondent was not satisfied with the reply given by the petitioner and passed order of termination and the same has challenged by the petitioner.

    Court Held:
    Recommendation made by ICC under Section 13 being appealable under Section 18 of the act read with standing Orders of the first respondent, petitioner would be at liberty to file an appeal within two weeks from today and in the event of such appeal being filed, appellate authority shall consider the same on merits and in accordance with law without insisting for application for condonation of delay being filed. In brief it states that if one wants to challenge the enquiry report, the same has to be by way of an appeal only before the appellate authority.
  4. Can Order of Transfer be challenged when the enquiry is pending?

    W.P. No. 34661/2017 Dr. Jagadeesh S. Sanganal v. The State of Karnataka and Others.
    There are two questions involved in this case i.e.,
    1. Can order of transfer be challenged when the enquiry is pending? and
    2. Can the Petitioner be transferred when the enquiry is still pending?

      To which the court has answered as below:
      In the above case the petitioner was designated as Professor and Head of the Department of Pharmacology and Toxicology in Veterinary College, Hebbal. One student of the college filed a complaint against the petitioner for sexual harassment. Accordingly, an enquiry was conducted but since the complainant was not interested to pursue the complaint, the enquiry was concluded.

      Later another complaint for sexual harassment was filed against the same petitioner by one of the Assistant Professor of the Department wherein she alleged that she has been mentally tortured by the rude behaviour of the petitioner. The said complaint is still under enquiry by the ICC. Meanwhile, the petitioner has been issued with the transfer order as already two complaints have been filed against him and the said order of transfer has been challenged by the petitioner in the above writ petition.

      Court Held:
      (Para 8) the petitioner has ample opportunities of influencing the witnesses, and in tampering with the evidence. He may, thus, create obstacles in the smooth functioning of an impartial enquiry.

      Therefore, to ensure that the enquiry, which has been initiated against the petitioner, is carried out, smoothly, and the evidence is objectively present before the Committee, and the committee is left to take an impartial decision on the evidence produced both, by the complainant, and the delinquent official, it is imperative that the petitioner should be removed, and should be transferred.

      Therefore, it cannot be said that the transfer order is punitive one. In fact, it has been taken in the interest of the faculty members, the non-teaching staff members, the students, and in the interest of the institution itself. Hence the transfer order is legally valid.
  5. Can ICC Report be challenged before the High Court?

    W.P. No. 59536/2016 Sri B.K. Mohanty vs. Hindustan Aeronautics Limited and Others.
    In the above case the petitioner has challenged the report of the enquiry given by the ICC and the show cause notice wherein, it held that the charges of sexual harassment levelled against the petitioner is established and recommending that the appropriate action be taken for the said misconduct. When the same came before the court, the court has referred to the judgments in Sri M Dhanraj vs. M/s. Hindustan Aeronatics ltd and another and Sonali Badhe vs. Ashish Chandra Singh and Ors, in the said case, similar challenge came to be negative on the ground that it is premature.

    Court Held:
    The court held that the petitioner can make a representation with regard to show cause notice not to file writ, as it is not that the petitioner is remediless. The petitioner is given an opportunity to make a representation against the findings of the enquiry committee. If the competent/disciplinary authority finds that the findings are not sustainable or that the enquiry held is not in accordance with law than it would not accept the findings else if it accepts the findings, the petitioner has the right to appeal. As of now, none of the petitioner's right is infringed.

    Thus, the enquiry report submitted by the ICC has to be challenged before the appropriate authority and not through Writ petition.

    Can Show Cause notice be challenged before the High Court?

    Another question which arose before the High Court in the above case is can the show-cause notice be challenged before the High Court, to which the court has made reference of Union of India and anr v. Kunisetty Satyanarayana reported in AIR 2007 SC 906 with regard to challenging of the show cause notice :- wherein it has been held that, no writ lies against a charge-sheet or show cause notice as that stage of writ petition maybe held to be premature.

    A mere charge-sheet or show cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any parties unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply or after holding an enquiry the authority concerned may drop the proceedings and establish the charges. Writ lies only when the right of the party is infringed and a mere show-cause notice or charge sheet does not amount to infringe the right of any one.
  6. Can Criminal Case be filed for the same set of facts and evidence produced before the ICC

    Criminal Petition No. 7429/2016 Usha Padmini vs. State of Karnataka and another.
    In the said case the Respondent No. 2 (Ms. Smita Arora) has filed the criminal case before the C.M.M., Bangalore for the offences punishable under sections:
    1. Section 354A of IPC: Sexual harassment and punishment for sexual harassment
    2. Section 504 of IPC: Intentional insult with intent to provoke breach of peace
    3. Section 34 of IPC: Acts done by several provisions in furtherance of common intention.

      And the said case has been filed by the petitioner to quash the criminal proceedings on the contention that as per the complaint of sexual harassment at work place, an ICC was constituted and an enquiry was taken up against the petitioners. The report of the ICC is placed before this court and no statutory appeal is pending against the said report. It is only after the conclusion of the said enquiry, the respondent no. 2 has come up with the allegations of the offences punishable under IPC. Thus, the petitioner has contained that the prosecution of for the alleged sexual harassment cannot be continued on the same set of facts and evidence.

      Court Held:
      it is clear that an enquiry was conducted by the ICC in respect of the very same allegations which are now made the basis for criminal prosecution for the petitioner's for the alleged offence under Section 354A of IPC. Even the material relied on by the ICC as well as the investigating Agency is one and the same.

      Thus, the ICC has already inquired into the very same allegations and having found no truth or substance in the said allegations, in my view, the prosecution of the petitioners for the very same violation on the same set of evidence would be an unjust and an abuse of process of court.
  7. Can second enquiry be conducted for the same charges against the same person?

    W.P. No. 29790/2014 Suman Saurabh vs. the Internal Complaints Committee and others.
    In the said case the petitioner was working as the Manager in the 2nd respondent company. The petitioner was alleged for the charges of the sexual harassment by one of the employee in the second respondent company and for the same ICC was constituted and an inquiry was conducted and the petitioner was held guilty for the charges levelled against him. Meanwhile, the petitioner was forced to resign according to which he sent the resignation letter to Committee member and also to his Manager.

    Accordingly, he had to be relieved on 25.03.2014 but he did not receive any correspondence and was allowed to continue the work. Meanwhile, the petitioner received the inquiry report holding guilty of the sexual harassment to which he replied reiterating that he is innocent. Based on which the second respondent company issued enquiry notice for initiating fresh inquiry. And the same has been challenged by the petitioner in the said case.

    Court Held:
    The court in the above case has held that until and unless, the recommendations are implemented in accordance with law, it is not permissible for the first respondent to initiate fresh enquiry. In the meanwhile, initiating fresh inquiry on the same charges on the complaint made is totally without jurisdiction.

    Under Article 20(2) of the Constitution of India, no person shall be prosecuted and punished for the same offence more than once as it amounts to double jeopardy. Therefore, the initiation made by the first respondent for a fresh inquiry on the same charges, on the same complaint is impermissible.
  8. Whether the Petitioner on whose complaint an inquiry was conducted, ought to have a right of audience before the Tribunal?

    W.P. No. 6207/2017 Sonali badhe vs. Ashish Chandra Singh Dla and Ors. Delhi High Court.

    In the present case the petitioner who is working as Assistant Legal Advisor had filed complaint with regard to sexual harassment against Respondent No.2 who was working as Deputy Legal Advisor. On which ICC was constituted and enquiry report was given holding the respondent no.1 as guilty of sexually harassing the petitioner. Aggrieved by the said inquiry report respondent no.1 challenged the same before the Central Appellate Tribunal to which petitioner was not made as a necessary party.

    The grievance of the petitioner is that though the enquiry and the disciplinary proceedings were initiated against the respondent no.1 on the bases of the complaint filed by the petitioner, the respondent no.1 had deliberately failed to implead her as a co-respondent in the said appeal. When the petitioner filed for IA for impleadment in the said proceedings, the Tribunal proceeded to dismiss the same on the ground that service jurispendence does not permit a right of audience to the petitioner. The said order has been challenged in the above writ petition.

    Court Held:
    it was incumbent for the respondent no.1 to have impleaded the petitioner as a co-respondent in the proceedings filed by him before the Tribunal as she has a direct and vital interest in the outcome of the said petition, in the capacity of a victim of sexual harassment at the workplace. She is therefore not only a proper party, but also a necessary party to the proceedings pending before the Tribunal. Thus, the petitioner has locus standi to file an application for impleadment in the O.A. filed by the respondent no.1.
  9. Principle of Natural Justice

    In W.A. No. 971/2019 Amrita A S. Nair vs. Janmejai Shukla and others.
    In the above case the appellant, 1st and the 5th respondents were the students of the same class in Christ University. The appellant had filed a complaint against the 1st and the 5th respondents which were very serious in nature which, if proved, will amount to sexual harassment of the appellant. The ICC of the concerned University conducted an inquiry in which 1st and the 5th respondents were held guilty of the charges and punishment was inflicted on them by way of detention from their current studies for a period of one year.

    An appeal was preferred challenging the said report and the Appellant Committee upheld the order and also the Vice Chancellor accepted the recommendations. The separate writ petitions were filed on the ground that there was a breach of the principles of natural justice. The court held that a copy of the complaint was not provided to the 1st and the 5th respondents and no opportunity was given to file their response and both the orders were set aside. The petitioner being aggrieved by the same has filed this appeal.

    Court Held:
    As the first and fifth respondents admitted the allegations even before the commencement of the inquiry, the breach of principles of natural justice has no relevance. Thus, the order of learned Single judge is set aside. To take action on the basis of the complaint made by the appellant by immediately referring the same to the Internal Complaints Committee strictly in accordance with law.
  10. Can Writ Petition be filed seeking Quashing of Enquiry Report for not following the procedure?

    W.P No. 56994/2018 Professor Giridhar Madras vs. The Indian Institute of Science and Others (Reported Judgment)
    In the said case the petitioner was working as Professor of Chemical Engineering at IISc. Respondent No.3 was a student in the said institution and the petitioner was a guide to respondent no.3. Respondent No.3 had certain grouse against the petitioner relating to alleged sexual harassment while associated with the petitioner in the profession.

    Respondent No.3 approaches IISc Committee and gave a oral complaint. Based on oral complaint, committee called the petitioner while apprising allegations against him without disclosing identity of respondent no.3, for which, petitioner had submitted his explanation. Further respondent no.3 had filed a complaint.

    Once again, petitioner was called for submission of his explanation. After receipt of petitioner's explanation, respondent no.3 requested the committee to not to pursue the enquiry.

    Thereafter, petitioner was not co-operating with respondent no.3 in respect of academic issues. Consequently, respondent no.3 pursued the Enquiry Committee to proceed with enquiry in terms of complaint filed initially, there was an error in constitution f committee and it was rectified. Thus, enquiry was held and the allegations levelled against petitioner were proved and recommended for terminating the services of the petitioner. Disciplinary Authority proceeded to impose penalty of compulsory retirement while granting 75% of pension.

    Petitioner's Challenge
    Based on the facts above the petitioner has filed the writ to set aside the order passed by the institution of penalty as he had not been provided show cause notice to proposed penalty before imposing penalty of compulsory retirement, the impugned inquiry report and the impugned findings report.

    Court Held:
    1. Show cause notice proposing penalty is not mandatory. Therefore, as he had not been provided show-cause notice to proposed penalty before imposing penalty of compulsory retirement is hereby rejected.
    2. Based on the judgments produced the findings of the report issued by the respondent no.2, the inquiry report and the order issued by the respondent no.1 has been set aside
    3. Concerned authority was directed to take appropriate action against the Committee Members and Director in accordance with law for violating Section 16 & 17 of the act. Such proceedings shall be completed within a period of 4 months.
  11. Whether it is necessary for the ICC to act as the initial fact finding authority? When can the Disciplinary authority conduct enquiry?

    W.P No. 5928/2016 (2018) 1 CLR 660- High Court of Delhi – Tejinder Kaur v. Union of India
    In the above case the petitioner has filed the above writ petition as the provisions of the act are not being followed by the respondent no.2(institution) and also claims that the order of respondent no.5 in rejecting the said complaint as time barred is malafide.

    The facts of the case are that the respondent no.2, National Institution of Public Co-operative & child Development organization having four regional centres at Bengaluru, Guwahati, Indore and Lucknow. One Ms. X (identity has not been disclosed) had filed the complaint for sexual harassment against the then Regional Director (Indore).

    The Respondent No.5 gave a report stating that the complaint was time barred and no further action was taken pursuant to the said complaint and also under Rule 14 of the CCS(CCA) [Central Civil Services (Classification, Control & Appeal)], Rules, 1965, the Disciplinary authority had not formed an opinion as to whether there was any grounds for conducting disciplinary proceedings and the appropriate authority for conducting an inquiry for the sexual harassment complaint is ICC.

    Court Held:
    1. 16. Concededly, the complaints of sexual harassment and disciplinary proceedings pursuant thereto have to be conducted in the manner as specified under the CCS(CCA) Rules, 1965.
    2. 17. The opening sentence of the Rule 14(2) of the CCS (CCA) Rules, 1965 makes it clear that an inquiry would commence only when the Disciplinary Authority is of the opinion that there are grounds to enquiry into the matter. Thus, if the Disciplinary Authority is of the opinion that no inquiry is warranted, the question of referring the matter to the ICC for inquiry would not arise.
    3. 20. It is apparent from theabove that ICC has a dual role. It has to act as an investigation agency in the first stage and as an Inquiring Authority, if the disciplinary Authority is of the opinion that disciplinary proceedings be initiated against the officer accused.
  12. Can the notice of enquiry be challenged before the High Court?

    W.P No. 10267/2018 Dr. P. Padmanaban vs. The Chief Secretary to Government and Another. (High Court of Madras)
    In the above writ petition, petitioner has challenged the notice of enquiry. One Mr. Dr.R.Rani, Veterinary Assistant Surgeon, who was working under the petitioner, and she has alleged sexual harassment on the petitioner. Based on which notice was enquiry was sent to the petitioner and the same has been challenged by the petitioner in the present writ petition, on the ground that the impugned notice is being violative of several provisions of the act.

    Court Held:
    The petitioner cannot be allowed to escape from being enquired into when series of complaints were made against him by the affected individual. After all, 4th respondent has only issued the impugned notice to the petitioner, summoning him to appear for enquiry and it is always open to the petitioner to appear and explain his position vis-à-vis the complaint and establish his innocence as per his claim and can come out unscathed. In any case, no prejudice would be caused to the petitioner if 4th respondent Committee engages itself in enquiry in terms of the scheme of the act since reasonable opportunity would be afforded to the petitioner to put forth his counter claim against the complainant.
  13. Can Writ Petition be filed challenging the Enquiry Report as not fair and proper?

    W.P. (MD) No. 4491/2014 Suresh @ Karuppaiah v. The State of Tamil Nadu and Others (Judgment dated: 24.07.2019 by Madras High Court)
    The fact in the above case is that the Petitioner has filed the above writ petition is for a direction to direct the respondent 1 to 4 to constitute a Local Complaints Committee and conduct an enquiry on the complaint given by the petitioner.

    The petitioner had filed the complaint against the 5th respondent for sexual harassment committed against his wife. The 5th respondent was working as Deputy Superintendent of Police and the wife of the petitioner was working under his control as constable. During the relevant time, the 5th respondent has misused his official position and developed an illicit intimacy with the wife of the writ petitioner.

    The 5th respondent use to threaten the petitioner's wife due to which she was constrained to full fill the demands and due to the same she committed suicide. Based on the said facts enquiry was constituted and report was given. The contention of the petitioner is that no fair enquiry was conducted under the provisions of the act.

    Court Held:
    Based on the above facts the Court held that: the courts cannot show ant leniency in respect of such allegations. The manner in which the investigations are conducted as well as the appointment of ICC by the respondents on earlier occasion were undoubtedly not satisfactory and therefore, this court intervened for the purpose of conducting a fresh enquiry by the newly constituted Committee through the orders of the District Superintendent of Police.

    They have to conduct a proper enquiry by verifying the earlier conduct of the fifth respondent in order to initiate strong actions, so as to prevent the 5th respondent in committing any such illegal activities or misconducts.
  14. Can Industrial Tribunal hold the enquiry conducted is not fair and proper?

    W.P. No. 29012/2012 The Management of Christian Medical College and Hospital v. Mr. S.G. Dhamodharan. (Judgment dated: 15.03.2019 by Madras High Court)
    In the above case the petitioner management is a Minority Educational Institution. It received a complaint from one Mrs. B. Samathannamma, Hospital House Keeping Attendant against the respondent employee, regarding sexual harassment.

    The said complaint was forwarded to the committee specially constituted. In pursuance of the complaint, an incamera proceedings had been conducted by the committee. On consideration of the relevant materials and evidence, the committee gave a finding, holding the respondent employee guilty of the charges framed against him. The committee had recommended to initiate action against the respondent employee, based on which a show cause notice was issued and also the respondent replied to the said notice.

    Being not convinced with the reply the petitioner management was constrained to dismiss the respondent. In view of the pendency of the matter before the Industrial Tribunal, an approval application was filed. The Tribunal held that there was no sufficient documentary evidence to establish that the enquiry was conducted in a fair and proper manner. The same order has been challenged by the petitioner in the present case.

    Court Held:
    Based on the facts of the above case the court has held that:
    it is not open to Industrial Tribunal to hold such enquiry was not fair and proper and call for enquiry once again. Such procedure cannot be adopted by the Industrial Tribunal in sexual harassment cases where the enquiry is conducted by the special committee which was put in place on the basis of the Hon'ble Supreme Court directions. Ultimately, this court finds that the approach of the Industrial Tribunal appears to be invalid in not making a distinction between sexual harassment cases and other normal cases and such clichéd and stereotype approach of the Industrial Tribunal per se discloses non-application of mind and therefore, it calls for interference of this Court.
  15. Can Second Show-Cause Notice be Challenged?

    W.P No. 15145/2019 The Principal & Secretary, Madras Christian College v. The Convenor Committee of Enquiry/ Internal Complaints Committee (Madras High Court)

    In the above case the petitioner was a government employee working as Assistant Professor in the Zoology Department in the 1st Respondent College. A study tour was conducted for all the students in the zoology department along with the faculty members among which petitioner was one amongst it. Anonymous complaint was received against the petitioner for sexual harassment and the warning letter was issued along with the punishment.

    The Petitioner gave detailed reply to the complaint and not being satisfied with the reply enquiry was conducted, in which 8 girls appeared before the committee. Petitioner gave reply to the enquiry report, stating that the procedure adopted by the committee is in violation of the principles of natural justice as documents were given after an enquiry was completed and is also contrary to section 13(enquiry report).

    Petitioner's Challenge
    The petitioner in the above case has urged that, in terms of Section 13, the proceedings initiated by the committee are only recommendary in nature and as he is a Government Servant, action needs to be taken only under Civil Services Rules, and has got protection under Article 311 of the Constitution of India and has challenged second show cause notice issued against him.

    Court Held:
    The court in the above case has held that:
    1. 23. This court finds justification in the act of the Committee, in the reasoning that as soon as the students, who lodged complaints against the petitioner, notice the personal appearance of the petitioner in the very same hall, there are chances of their getting panic out of fear and threat and as a result, the entire truth will not come out of their mouth, thereby, leaving allegations levelled against the petitioner unnoticed by the committee. Hence, in the considered opinion of this court, there is no violation of the principles of natural justice by the committee in the conduct of the enquiry and this court finds no infirmity with the report of the committee.
    2. With regard to challenging the second shoe cause notice the court there is no justifiable ground to interfere with the fact finding report as well as the second show cause notice, as further action followed by the show-cause notice will only bring the cat out of the bag. Hence, the Writ Petition is liable to be dismissed.
  16. W.P No. 139/2015 & CM No. 218/215 Gaurav Jain v. Hindustan Latex Family Planning PromotionTrust (HILFPPT) & Ors
    The facts of the case are that one Ms. Nidhi Gupta made a complaint of Sexual Harassment against the petitioner, who was an employee of the Hindustan Latex Family Planning Promotion Trust (HILFPPT). The matter was referred to Internal Complaints Committee and notice was issued to the petitioner, the petitioner replied to the said notice.

    Respondent not being satisfied with the reply given by the petitioner, matter was reported to the ICC, which is constituted as per the act. After detailed inquiry, the ICC submitted its report and found that the petitioner is liable for the charges levelled against him and thus, terminated the petitioner from his services. The said order of ICC has been now challenged in the above case.

    Court Held:
    The Court in the above matter stated that the report of Internal Complaints Committee has given a very detailed report which discussed the matter thoroughly and all facts, evidences; issues are exhaustively dealt in it. Thereafter ICC arrives at the necessary conclusion. The Court is of the view that the report of the ICC is lucid and very well written as if it is a judgment of Court.

    Once detailed findings and conclusions are given by the ICC based on the evidence led before ICC, unless 176 the findings are perverse, this Court cannot interfere with the findings of facts and conclusions given by the ICC. A Court interferes with the orders passed by the Departmental authority's only if the same are in violation of the principles of natural justice or are in violation of rules of the organization. The Court after proper examining of the facts and evidence in hand held that there is no violation of principles of natural justice or violation of service rules. So, the present writ petition is dismissed.
  17. Can Writ Petition be filed seeking direction to the Committee to take final decision?

    Civil Writ Jurisdiction Case (CWJC) No. 9733/2013 Rashmi Singh v. The State of Bihar and Others.
    The facts of the above case is that, petitioner was working as Child Development Project Officer posted at Danapur, allegedly faced some sexual harassment at the hands of respondent no. 11 who was at that time posted as Director, Integrated Child Development Scheme, Department of Social Welfare, government of Bihar.

    A complaint was filed before the department by the petitioner. After constitution of the Committee, petitioner's complaint was transferred to the committee. The committee held some hearing and examined some witness, but did not submit its report. Hence, the petitioner has moved before the High Court seeking a direction to the Committee to take a final decision in the matter.

    To the said contention the respondent filed there affidavit stating that before the Committee could take a final decision, in terms of the order of the Apex Court, the Departmental level Complaints Committee was constituted. So, the complaint filed by the petitioner has been transferred to the Departmental Level Committee. Thereafter, the learned counsel for petitioner submits that the members of the Departmental level Committee are much junior to the perpetrator. So, they may not be in a position to take a decision without any bias. Thus, the complaint of the petitioner should be transferred back to the State Level Committee, in the interest of justice.

    Court Held:
    The Court in the above matter held that it is appropriate that complaint of petitioner should be transferred back to the State Level Committee which should continue with the hearing of the matter and come to a final decision accordingly. The Court ordered the State level Committee to take a final decision against the allegations of Sexual Harassment within three months from the date of receipt of records.
  18. W.P No. 796/2015 Vidya Akhave V. Union of India (Mumbai High Court)
    The facts of the case are that, the petitioner had joined IFCI (Industrial Finance Corporation of India) the same company in which Respondent no. 2 was also working as General Manager and was immediate superior officer of the petitioner. A complaint was filed by the petitioner alleging that she was subjected to sexual harassment by Respondent no. 2. It was urged by the petitioner that CEO and MD should constitute a committee, as laid down by the Apex Court in Vishaka V. State of Rajasthan.

    A second complaint was again filed by the petitioner since no action was taken on her first complaint. In view of the above said two complaints, a committee was constituted and a show cause notice was given to the Respondent No.2, asking him to give his explanation. According to the petitioner, she started working with respondent no. 2, from April, 2011 & the first incident took place in July, 2011 and the last incident in February, 2012. Then, the petitioner was transferred to another company in March, 2012 for a period of about 11 months and was again posted back to IFCI, Mumbai on 18 Feb. 2013.

    After posting back to IFCI, she again faced sexual harassment by respondent no.2. In total, the petitioner faced 25 instances of sexual harassment by Respondent no.2. The ICC constituted after a detailed inquiry submitted its report to the Disciplinary Authority. The Disciplinary authority came to the conclusion that the acts of the accused were of unbecoming of a person of holding the office and it was appropriate to impose penalty as prescribed under the Regulation No 61 (f) of the IFCI Staff Regulation 1974 and a major penalty was imposed of reduction to a lower stage by two stages with cumulative effect.

    As a result of this, Respondent No. 2 was transferred to Chennai and his salary was reduced. The petitioner has approached this Court to challenge the validity of punishment imposed by Disciplinary Authority on Respondent No 2.

    Court Held:
    The Court in the above case has held that It is also equally well settled that if a domestic enquiry is held, after giving an adequate opportunity to both the parties in that case, the High Court while exercising its writ jurisdiction is not expected to re-appreciate the evidence. After taking into consideration the report of inquiry committee, the present court is of the view that punishment which is imposed is not shockingly disproportionate to the conduct of the Respondent No 2 and therefore, not interfering with the punishment imposed by the Disciplinary Authority.

    Setting aside of the Disciplinary Authority Order
  19. OA No. 2167/2017 Jaswinder Singh v. Union of India and Another. (Before Central Administrative Tribunal Principal Bench New Delhi)
    In the above case the petitioner was a Postmaster General, Punjab Region, Chandigarh, meanwhile a complaint was lodged against him by one Smt. Ranju Prasad, then working as Director in the Punjab Region. On the basis of the said complaint a note was put up by Department of Posts, New Delhi seeking approval to set up an inquiry committee. But the file had never put up to the disciplinary authority. Another complaint was made against the petitioner by one Ms.Sunita to the said complaint he replied and being not satisfied with the reply committee was constituted to conduct the inquiry on the basis of both the complaints.

    The committee held that It also stated that the petitioner has to be shifted out of Punjab circle as his continuing to function in such a senior position could lead to vitiating the wrong atmosphere in the Circle but also may lead to harassment of the employees further. The enquiry report was challenged before the disciplinary authority and it was held that this is a case of sexual harassment. The Committee is requested to appreciate the evidence afresh and if necessary, review its recommendations. In the meantime, the officer be shifted out of Punjab circle.

    Consequently upon the aforesaid observations of the disciplinary authority, the committee, after further inquiry, submitted its revised inquiry report stating that the petitioner should be shifted out of Punjab circle. The said order has been challenged in the present case.

    Court Held
    The Court in the above case has held that it appears that the Disciplinary Authority has not recorded any reasons, nor dealt with the representation with the contentions of charged officer raised in its two representation and imposed the penalty. In the totality of factual and legal analysis, the impugned penalty order is liable to be set aside. This OA is accordingly allowed. The impugned penalty order is hereby set aside
  20. Can Disciplinary Authority impose punishment without conducting enquiry proceedings?
    W.P. (C) No. 242/2017 Jyoti Prakash v. Internal Appellate Committee and Others (High Court of Orissa: Cuttack)
    The facts of the case are the petitioner was working as Deputy Manager at Rourkela under the respondent bank. The respondent no.6 filed the complaint for sexual harassment against petitioner before the Chief Manager-Branch Manager. Based on the said compliant the Internal Complaints Committee has issued the notice to the petitioner before whom the petitioner has appeared and filed written statement.

    After consideration the ICC has submitted report before the competent authority and recommending for removing the petitioner from the services without conducting an enquiry procedure. The petitioner has objected for the same before the Higher Authority. The Higher Authority has upheld the order of the ICC.

    Aggrieved by the same the petitioner has filed the above writ petition seeking to quash the said order, inter alia on the ground that no opportunity of hearing has been given and was not allowed to cross-examine the witnesses and the principle of natural justice has been followed. Therefore, the order has been passed without initiating any regular proceedings.

    Contentions rose
    The respondent has replied to the said contention of the petitioner stating that the due procedure has been followed and also the copy of the report had been given to the petitioner and all adequate and sufficient opportunity was given and based on the same the charges were proved against the petitioner.

    Court Held
    The court in the above case has held that:
    In view thereof the report submitted by the internal complaints committee in view of Section 11 cannot be said to be an enquiry report in terms of section 13 to be treated as enquiry report under the provisions of Discipline and Appeal Rule and since it is not an enquiry report treated U/s. 13 as enquiry report, the proposed punishment which is impugned in this writ petition treating the enquiry report submitted under the provision of section 11 will be said to be an improper decision of the authority since the stage has not yet come because as yet the proceeding has not been initiated as contemplated under the provision of Section 19(i) of the Act, 2013 and in view thereof the notice cannot be held to be sustainable in the eye of law.

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