By Anuradha Gandhi and Surbhi Gandotra
Introduction
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH) mandates a structured redressal mechanism for complaints of sexual harassment at the workplace. A frequently debated procedural nuance is whether the Internal Committee must first attempt conciliation before initiating an inquiry.
This article dives deep into the legal framework, interpretative judicial decision, and practical considerations surrounding this issue to assess whether conciliation is “an option”, or “a procedural requirement”.
The Madhya Pradesh High Court, in the case of Dr. Kali Charan Sabat v. Union of India through National Institute of Technology & Ors.,[1] emphasized the mandatory nature of the conciliation process under Section 10 of the POSH Act, 2013.
Factual Background
The petitioner, served as an Assistant Professor in the Department of Materials and Metallurgical Engineering at Maulana Azad National Institute of Technology (MANIT), Bhopal. He was dismissed from service pursuant to disciplinary proceedings initiated on the basis of sexual harassment complaints. Aggrieved by the termination and suspension orders, the petitioner filed a writ petition under Article 226 of the Constitution of India, alleging procedural irregularities and violation of principles of natural justice during the inquiry.
Issues for determination:
- Whether enquiry conducted by the respondents against the petitioner was in accordance with law and the prescribed procedure?
- Whether the enquiry is vitiated on the ground that the same has not been done in accordance with law and the manner in which it should have been done as per law and it deserves to be set aside as principles of natural justice has not been followed?
Petitioner’s Contentions
- Lack of Compliance with Procedural Framework The petitioner contends that the Complaints Committee, designated as the Enquiring Authority, failed to conduct the inquiry in accordance with Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965[2], and applicable service norms under the POSH Act, 2013.[3]
- Denial of Natural Justice It was alleged that the inquiry was conducted in complete violation of the principles of natural justice. No substantive evidence was adduced during the proceedings, nor was the petitioner afforded an opportunity to cross-examine the witnesses. As a result, the entire inquiry process stands vitiated for want of procedural fairness and due process.
- Absence of Personal Hearing The petitioner was not granted an opportunity for hearing; proceedings were conducted without giving him chance to hear and on the basis of the allegations made against him and the response submitted by him. Rendering the process arbitrary and one-sided.
- Rejection of Written Defense and Representation Despite submitting a detailed written representation and a reply to the inquiry report on 12 February 2024, the petitioner’s submissions were not considered, and the disciplinary authority proceeded to pass the termination order without due regard for his defense.
- No Examination of Complainants The petitioner contented that none of the complainants were examined by the Committee, resulting in a proceeding devoid of evidentiary basis and amounting to a “no inquiry” in legal terms.
Respondents Arguments:
- The petition was barred under Section 29 of the NIT Act, 2007[4], which provides for arbitration as the mode of dispute resolution.
- The inquiry was conducted in accordance with service rules and the petitioner had initially expressed confidence in the inquiry officer.
Court’s decision:
- Preliminary Objection and Court’s Finding on Maintainability of Petition
Before adjudicating the substantive issues raised in the writ petition, the Court deemed it necessary to first address the preliminary objection raised by the respondents concerning the maintainability of the petition under Article 226 of the Constitution of India.
The respondents submitted that, in view of the provisions of Section 29 of the National Institute of Technology Act, 2007, disputes between the institute and its employees are preferable to arbitration, and therefore, a writ petition under Article 226 ought not to have been entertained directly. The respondents argued that the petitioner should have first availed the alternative remedy prescribed under the statute before approaching the High Court.
In rebuttal, the petitioner contended that the nature of the present dispute, being rooted in alleged violations of principles of natural justice during a disciplinary inquiry, requires judicial scrutiny. It was argued that “when serious procedural lapses are alleged, the availability of an alternative remedy does not constitute an absolute bar to invoking writ jurisdiction.”
Upon considering the submissions and the statutory framework, the Court held that Section 29 of the Act, 2007 provides “arbitration as an optional remedy”, and not a mandatory or exclusive one. It is the employee’s discretion whether to invoke arbitration. The petitioner, as reflected in the record, had not opted for arbitration or made any reference to the Arbitration Tribunal.
Therefore, the Court is of the opinion that the existence of an alternative remedy does not oust the jurisdiction of the High Court under Article 226, particularly where violation of fundamental procedural safeguards is alleged. Therefore, the preliminary objection raised by the respondents was found to be unsustainable, and the petition was held to be maintainable.
- Issue number two: Whether the inquiry is vitiated on the ground that it was not conducted in accordance with law and deserves to be set aside
It is submitted that the inquiry conducted by the Internal Committee under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, POSH Act stands vitiated due to multiple procedural and substantive violations of statutory provisions and constitutional safeguards.
Non-Compliance with Section 10 of the POSH Act: Absence of Conciliation Attempt
- Section 10 of the POSH Act requires the IC to attempt conciliation between the aggrieved woman and the respondent before initiating an inquiry, but only at the request of the aggrieved woman and without any monetary settlement. In the present case, there is “no record of any such attempt at conciliation”, nor any documentation of its failure. This omission constitutes a procedural defect, rendering the inquiry non-compliant with the statutory framework.[5]
Violations of Section 11 of the POSH Act: Hasty and Unfair Inquiry Process
- The IC issued a notice to the Petitioner to attend a meeting on the same day at 4 p.m., the very day the complaint was forwarded. The Petitioner was asked to submit a reply within four hours, in a specific format, without being provided with the complaint or supporting documents. Such conduct reflects undue haste and deprives the Petitioner of a reasonable opportunity to prepare a defense, violating the principles of fairness and due process.
Section 11(3): Powers of Civil Court
- The IC did not exercise its powers akin to a civil court under the Code of Civil Procedure, 1908, which include, Summoning and examining witnesses on oath, requiring discovery and production of documents. The absence of these procedural safeguards undermines the integrity and legality of the inquiry.
Denial of Natural Justice
- The inquiry process violated the principle of Audi Alteram Partem:
- The Petitioner was not given a meaningful opportunity to be heard.
- No opportunity was provided to cross-examine the Complainant or witnesses.
- The inquiry report does not indicate whether the Complainant appeared before the IC.
- The report was finalised solely on the basis of the written response of the Petitioner.
- These lapses amount to an infringement of the rights guaranteed under Articles 14 and 21 of the Constitution of India, which guarantee:
- Equality before law
- Right to life and personal liberty, including procedural fairness and dignity
In light of the above violations the Court held that:
- In the present case, IC did not follow any such procedure. Furthermore, based on the order-sheet of inquiry, it is visible that the witnesses did not physically appear before the Inquiry Officer and the Petitioner was not given any opportunity to cross-examine them.
- The Hon’ble bench also noted that when Petitioner raised objection regarding bias of the inquiring authority, it was not entertained because at the inception of the proceedings, Petitioner had shown faith in the authority.
- The Hon’ble Court held that “the entire inquiry proceeding, from its inception, has been conducted without adherence to any procedure prescribed by law and such a procedure is a mere eye wash. Therefore, it concluded that the findings of Inquiry Officer cannot be considered as sustainable in eyes of law and punishment based on it cannot be allowed to stand.”
- Thus, the petition was allowed.
A brief understanding of Section 10 Conciliation Process under POSH Act:
| Who can initiate conciliation? | Complainant |
| Who can conduct the process? | The Internal Committees |
| What is a key aspect of the conciliation? | Addressing and resolving the concerns through mutual agreement |
| When the conciliation process is said to be complete? | When both the parties agree to the terms of settlement |
References:
- The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013: Section 10
- Kali Charan Sabat v. U.O.I. (National Institute of Technology & Ors), 2024
[1] https://indiankanoon.org/doc/30009086/
[2]Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965: Mandates a formal inquiry process, ensuring the accused officer/person is informed of the charges, evidence, and shall be given opportunities to defend themselves. This includes the right to inspect documents, cross-examine witnesses, and present their own evidence.
[3] https://indiankanoon.org/doc/30009086/
[4] Section 29-Any dispute arising out of a contract between an Institute and any of its employees shall, at the request of the employee concerned or at the instance of the Institute, be referred to a Tribunal of Arbitration consisting of one member appointed by the Institute, one member nominated by the employee, and an umpire appointed by the Visitor.
(2) The decision of the Tribunal shall be final and shall not be questioned in any court.
(3) No suit or proceeding shall lie in any court in respect of any matter, which is required by sub-section (1) to be referred to the Tribunal of Arbitration.
(4) The Tribunal of Arbitration shall have power to regulate its own procedure.
(5) Nothing in any law for the time being in force relating to arbitration shall apply to arbitrations under this section.