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2025 Supreme(Online)(KER) 12024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. Muhamed Mustaque, P. Krishna Kumar, JJ
Thomas Antony, S/o. K.t. Antony – Appellant
Versus
State Of Kerala – Respondent
OP(KAT) NO. 80 OF 2025
Advocate Appeared:
For the Appellant : K.R.GANESH ELVIN PETER P.J. (SR.), JELEETTA GREGORY, ANAMIKA M.J., ADARSH BABU C.S.
For the Respondent: BY GOVT. PLEADER SRI.SUNILKUMAR KURIAKOSE
The court emphasized the necessity of adhering to statutory provisions during disciplinary enquiries under the POSH Act, ensuring the accused's right to challenge the complainant's statements while safeguarding the complainant's ability to testify without intimidation.
Headnote:
(A) Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 - Sections 11 and 13 - Disciplinary enquiry against employee for alleged harassment - Petitioner was not allowed to cross-examine the complainant during the enquiry - Tribunal held challenge to proceedings was premature - Court emphasized compliance with service rules during enquiry. (Paras 4, 5, 6, 9)
(B) Principles of Natural Justice - The court underscored that the delinquent's right to cross-examine is subject to the complainant's ability to testify without intimidation - The enquiry can proceed without verbal cross-examination if the complainant is not in a position to express freely. (Paras 7, 8)
Facts of the case:
The petitioner, a Deputy Director, faced allegations of harassment from a female co-worker, leading to an enquiry by the Internal Committee under the POSH Act. He challenged the enquiry process for not allowing his participation and cross-examination of the complainant.
Findings of Court:
The court found no jurisdictional error in the Tribunal's order and directed that the enquiry must comply with statutory requirements and ensure the petitioner's right to challenge the complainant's statements.
Issues: Whether the petitioner was denied the opportunity for a fair enquiry and cross-examination as mandated by the POSH Act and service rules.
Ratio Decidendi: The court ruled that while the delinquent's right to cross-examine is crucial, the committee must first ensure the complainant's ability to testify freely; thus, the absence of verbal cross-examination does not automatically vitiate the enquiry.
Result: Original petition disposed with directions.
JUDGMENT :
P.Krishna Kumar, J.
While the petitioner was serving as Deputy Director in the District Tourism office, an enquiry was initiated against him by the Internal Complaint Committee constituted under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (‘POSH Act’, for short), on the basis of Annexure A1 complaint. The gist of the allegation against the petitioner is that he harassed the complainant, a female co-worker in his office, in various ways. Based on Annexure A3 report of the Internal Committee, Annexure A5 Memo of Charges was issued to the petitioner. Later, he received Annexure A20 Show Cause Notice by which a punishment of lowering him as the junior most in the category of Tourist Information Officer was tentatively proposed.
2. After submitting Annexure A23 reply against the said notice by raising serious objections against the enquiry report and the consequential actions taken, the petitioner approached the Kerala Administrative Tribunal for setting aside Annexure A3 report and further proceedings. The Tribunal refused to interfere with the proceedings initiated against the petitioner. It observed that the challenge made by him is premature and he could avail of his remedies when final orders are issued. This order is impugned in the present original petition filed under Article 227 of the Constitution of India.
3. We heard the learned Senior Counsel for the petitioner Sri. Elvin Peter P.J., as instructed by Sri.K.R.Ganesh, and Sri.Sunilkumar Kuriakose, the learned Government Pleader.
4. The upshot of the contentions of the petitioner is that as per Section 11 of the POSH Act, the Internal Committee is bound to enquire into the complaint in accordance with the provisions of the Service Rules applicable to the incumbent employee, but the petitioner was not even permitted to participate in the enquiry while the complainant was examined and thus he was also not permitted to cross-examine the complainant. It is further contended that as per the provisions of the Kerala Civil Services (Classification, Control and Appeal) Rules, the Service Rules applicable to the petitioner for conducting a disciplinary enquiry, a delinquent is entitled to participate in the enquiry and cross-examine the complainant and thus the Committee was bound to participate the petitioner while conducting the enquiry. The petitioner further assails the procedure followed by the Committee in so much as it violates the second proviso to Section 11 of the POSH Act. Reliance is also made on the decision of this Court in Sibu L. S. v. Air India Ltd., New Delhi and Others (2016(2) KHC 569 ).
5. In this context, it is necessary to advert to the relevant part of Sections 11 and 13 of the POSH Act, which reads thus:
“ Section 11 :Inquiry into complaint (1) subject to the provisions of S.10, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under S.509 of the Indian Penal Code (45 of 1860), and any other relevant provisions of the said Code where applicable:
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Provided further that where both the parties are employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee.
Section 13 : Inquiry report- (1) On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, th
