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2026 Supreme(Online)(Bom) 4425
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G. S. Kulkarni, Neela Gokhale, JJ
Ashok Upadhyay – Appellant
Versus
Union Bank of India – Respondent
WRIT PETITION NO. 2385 OF 2024
Important Points
Subject
Service Law - Sexual Harassment at Workplace
Act Referred
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013: R.11
Industrial Employment (Standing Orders) Act, 1946: S.2(a)
Constitution of India: Art.226
Union Bank of India Officer Employees' (Discipline & Appeal) Regulations: Reg.4(g), Reg.17
Headnote
(B) Writ of certiorari - Quashing of orders passed by an authority lacking jurisdiction - An order passed by an authority without jurisdiction is non-est and cannot form the basis for any further proceedings.
Facts of the case:
The Petitioner, an employee of Respondent No. 1/Bank, was exonerated by the Internal Complaints Committee (ICC) on a complaint of sexual harassment. The complainant appealed to an Appellate Authority constituted by the Bank, which, without notice to the Petitioner, ordered a reinvestigation. A new ICC found the Petitioner guilty, leading to a major penalty of reduction in grade. The Petitioner's departmental appeal against the penalty was rejected. The Petitioner challenged the orders before the High Court under Article 226 of the Constitution.
Findings of Court:
The Appellate Authority constituted by the Bank was without jurisdiction as Section 18 of the POSH Act read with Rule 11 mandates appeal to a court or tribunal or an authority notified under the Industrial Employment (Standing Orders) Act, 1946, not an authority created by the employer. Consequently, the entire subsequent proceedings, including the reinvestigation and the penalty order, were illegal and quashed.
Issues: Whether the Appellate Authority constituted by the employer was competent under the POSH Act to hear an appeal against the ICC's recommendation.
Ratio Decidendi: The employer cannot create or constitute an Appellate Authority under the POSH Act. The appeal must lie to a court or tribunal as per service rules, or to the authority notified under Section 2(a) of the Industrial Employment (Standing Orders) Act, 1946. An order passed by an illegally constituted authority is non-est and cannot be acted upon.
Result: Writ Petition allowed. Impugned orders quashed and set aside.
For the Appellants/Petitioners: Sanjay Kelkar, Omkar Kelkar
For the Respondents: Ashok D. Shetty, Rita K. Joshi
| Table of Content |
|---|
| 1. factual background and sequence of events leading to the petition. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. petitioner's core arguments on lack of jurisdiction and violation of natural justice. (Para 8) |
| 3. interpretation of section 18 posh act and rule 11: employer cannot create appellate authority. (Para 9 , 10 , 11 , 12 , 13 , 14) |
| 4. illegally constituted appellate authority renders entire subsequent proceedings non-est. (Para 15 , 16 , 17 , 18) |
| 5. final order: impugned orders quashed; liberty to complainant to approach proper forum. (Para 19 , 20 , 21 , 22 , 23) |
ORAL JUDGMENT: (Per G. S. KULKARNI, J.)
1. This petition under Article 226 of the Constitution of India is filed for the following substantive reliefs:
“a) that this Hon'ble Court be pleased to set aside and quash the Order of the Appellate Authority ordering reinvestigation and the Report of the Second Committee dated 30.06.2023;
b) That this Hon’ble Court be pleased to issue a writ of certiorari and set aside and quash the orders dated 04.09.2023 and 03.02.2024 respectively passed by the Respondent Nos. 3 and 2 as those are against the provisions of the Sexual Harassment of Women at Work Place (Prevention, Prohibition & Redressal) Act, 2013 and Sexual Harassment of Women at Work Place (Prevention, Prohibition & Redressal) Rules, 2013 and Regulation 4 (g) of the Union Bank of India Officer Employees' (Discipline & Appeal) Regulations as well as The CVC Act 2003 and the circulars issued by CVC.
c) That this Hon'ble Court be pleased to restore the Petitioner to his original position in the Grade of SMGS-V with the same pay scale which he was drawing before imposition of the penalty vide order dated 04.09.2023 and to stay the effect of the orders dated 04.09.2023 and 03.02.2024.”
2. As seen from the prayers, the Petitioner is aggrieved by the action, whereby by the impugned order, a penalty was imposed on him. Respondent No.1/Bank, being the employer, imposed the following penalty on the Petitioner vide order dated 04.09.2023, which reads as follows:
"Major penalty of 'Reduction to a lower grade from SMGS-V to SMGS-III by fixing him on the basic pay of Rs.63840/- i.e. initial basic pay applicable to SMGS-III, as specified in Regulation 4(g) of the Union Bank of India Officer Employees (Discipline & Appeal) Regulations be and is hereby imposed on Shri Ashok Upadhyay.”
3. The primary contention of the Petitioner is that the complainant/Respondent No.4, who was impleaded as a party Respondent to the present petition and who is stated to have been served through the Bank, made a complaint against the Petitioner on 03.04.2023, alleging sexual harassment at the workplace at the hands of the Petitioner. The said complaint was referred to the Internal Complaints Committee (for short, “the Committee”), which undertook an enquiry. An enquiry report dated 20.04.2023 was submitted by the Committee, exonerating the Petitioner. Such report was submitted to the Respondent No.1’s Field General Manager, Pune. It is the Petitioner’s case that the complainant/Respondent No.4 also registered an FIR bearing no. 61/2023 on 22.04.2023 with the Panaji Police Station under Sections 354 and 354-A of the Indian Penal Code, 1860, against the Petitioner and after completion of the investigation, the proceedings are now stated to be pending before the Judicial Magistrate First Class at Panaji.
4. Insofar as the proceedings before the Internal Complaints Committee, which exonerated the Petitioner vide report dated 20.04.2023, are concerned, the complainant/Respondent No.4 filed an appeal before the Appellate Authority on 30.05.2023. It is the Petitioner’s case that neither any notice of such appeal was served on the Petitioner, nor the Petitioner was heard by the Appellate Authority. The Appellate Authority is stated to have ex-parte directed reinvestigation i.e., a fresh enquiry was ordered by appointing a new committee. It is the Petitioner’s case that the new Internal Com
