Three government officers (“Complainants”) filed a written complaint alleging sexual harassment at the workplace by the Director (“Petitioner”) of the Organization. The Petitioner challenged the inquiry proceeding stating that complaints filed by the Complainants against the Petitioner were not directly submitted to the Committee and the complaint was procured in the Chief Minister’s Office. In this case, X vs. The State of Rajasthan and Ors., (2018 SCC OnLine Raj 1676), the Rajasthan High Court stated that even if the complaints were initially addressed to the Office of the Chief Minister once the said complaints were sent to the Committee and the aggrieved women appeared before the Committee and recorded their statement about sexual harassment, it cannot be said that the Committee was not within its domain to take cognizance of such complaints.

FACTS OF THE CASE: The petitioner was posted as Director, of the State Institute of Agriculture Management (SIAM). Three women officers filed a written complaint against him to the Chief Minister of the State of Rajasthan alleging sexual harassment at the workplace. An inquiry was conducted on the basis of the complaints by the Working Women Exploitation Prevention Committee (“Committee”) and they prepared an inquiry report.

ARGUMENTS OF PETITIONER: The Petitioner has challenged this inquiry report. The Petitioner has pleaded in his writ petition that he had not been supplied a complete copy of the inquiry report along with a list of documents, and copies of the statement recorded against him during the course of the inquiry. The Petitioner has also pleaded that there has been arbitrariness, unreasonableness, and vindictive attitude of the Principal Secretary, of the Agriculture Department. Petitioner states that:

1. There has been a violation of the provisions of the POSH Act and Rules framed thereunder, as the complaints filed by the Complainants were not directly submitted to the Committee and the complaint was procured in the Chief Minister’s Office.
2. The composition of the Committee is illegal and a person lower in rank than the Petitioner had been made the Chairperson of the Committee and as such, the person who is lower in rank, cannot conduct an inquiry against the Petitioner. The Petitioner was holding the post of Additional Director on a substantive basis and he was Director, SIAM, Durgapura, Jaipur whereas the Chairperson of the Committee was Deputy Director. The other departmental employees/members of the Committee were subordinate to the Petitioner and the Chairperson was not of senior level, as per the requirement of law.
3. The counsel claimed the violation of Section 16 of the POSH Act (on confidentiality) as the publication of inquiry proceedings violates the mandatory requirement of Section 16. It was said that the respondents have gone public about the alleged incident and the Petitioner’s name has been given in the press and this violates the dignity of the Petitioner.
4. The inquiry which was conducted by the Committee is against the principles of natural justice as the petitioner had not been given any opportunity to cross-examine the complainants and independent witnesses, and the Petitioner was not given copies of statements as well.
5. The inquiry into the act or behavior of sexual harassment, as per Section 2(n) of the Act of 2013, did not make out a case against the petitioner even from the bare reading of the allegations leveled against him. The Petitioner never directly nor by implication has done any unwelcoming act or behavior which may be termed as an act of sexual harassment.

ARGUMENTS OF RESPONDENTS: Additional Advocate General submitted that taking note of the serious nature of the charges, all the written complaints were sent to the Committee from the CMO. The Committee was within its domain to entertain such complaints. The Counsel claimed that the procedure was thoroughly followed and rather the petitioner violated the provisions of the POSH Act. He submitted a bare reading of the conclusion drawn by the Committee, which showed that the petitioner was not behaving in a responsible manner and the direct/indirect acts which he has committed against his colleagues/female employees, constitute a serious act of misconduct and as such the petitioner has been appropriately punished.

COURT OBSERVATION: The Court allowed the petition and quashed the report and the punishment by the IC. It referred to the provisions of the POSH Act and delved into the nuances of the Sections.

1. The Court referred to Section 9(1) and (2) of the POSH Act, 2013 and Rule 6 of the POSH Rules. The court iterated that even if the complaints were initially either addressed to the Office of the Chief Minister or the Principal Secretary, Department of Agriculture, once the said complaints were sent to the Committee and the aggrieved women appeared before the Committee and recorded their statement about sexual harassment, it cannot be said that the Committee was not within its domain to take cognizance of such complaints and as such, the procedure adopted by the Committee cannot be said to be vitiated on account of violation of the provisions of the Act of 2013 and the Rules, 2013 framed thereunder.

• The court observed that the Chairperson of the Committee was a senior-level Officer and no illegality can be attached to her appointment as Presiding Officer. It is also important to note that the said Committee was constituted in the year 2014 for a term of three years, as per the requirement of Section 4(3) of the Act of 2013. The said Committee looked into different complaints received against the employees of the department from time to time and the Committee was not constituted only to investigate the complaint lodged against the petitioner alone. The Committee cannot be constituted as per the hierarchy of the officials against whom complaints are received of committing sexual harassment. The only requirement is that there has to be a woman employed at a senior level. The other members are also part of the Committee who are amongst the employees who are committed to the cause of women or who have experience in social work or legal knowledge.

• The court noted that without going into the question of whether there has been a violation of Section 16 of the Act of 2013, the Act of 2013 provides a penalty under section 17 for publication or making known contents of complaint and inquiry proceedings and, in the instant case, publication or knowledge of inquiry proceedings being circulated in the Press, may not vitiate the orders which have been passed by the respondents and the only remedy available to the person aggrieved is to invoke Section 17 of the Act of 2013.

• This court further observed that Rule 7(4) of the Rules, 2013 provides that the Complaints Committee shall make inquiries into the complaint by the principles of natural justice. The court noted the requirement, as per Section 18A of the Rajasthan Civil Services Rules (CCA) Rules, 1958, is to hold an inquiry into the complaint as far as practicable following the procedure laid down in the CCA Rules, 1958. Concerning the process of inquiry, the Court opined that “The Complaints Committee has to follow the procedure of the inquiry as far as practicable following the procedure laid down in the CCA Rules, 1958, the said Rule does not specifically say that the entire procedure as provided under the CCA Rules, 1958 is to be followed but the intention seems to be that the inquiry should be conducted in such a manner where the principle of natural justice is being followed”.

• In the opinion of the court, either going by the Rule 18A of the CCA Rules, 1958 or considering the provisions of Section 11 of the Act of 2013 and Rule 7(4) of the Rules of 2013, “the respondents have committed illegality in conducting the inquiry and there has been a fault in conducting an inquiry and as such the petitioner has been denied the right to defend himself and violation of principles of natural justice has taken place”.The court found that the procedure which has been evolved by the Committee does not align with the rules of natural justice and such procedure cannot be termed fair.

• As regards the power of the High Court under Article 226 of the Constitution, the High Court cannot function as an appellate authority and substitute its conclusion as to the guilt of the delinquent. It is also settled law that the judicial review is not concerned with the correctness of the decision but is confined to the examination of the decision-making process as to whether the established principles of law and Rules of natural justice and fairness have been followed or not.

– Deeksha Rai, Litigation – Associate, Equilibrio Advisory LLP