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2024 Supreme(Online)(MAD) 38182
HIGH COURT OF MADRAS
R.N. Manjula, J
G. Kishore Kumar – Appellant
Versus
Director of Medical and Rural Health Services (ESI) – Respondent
W.P.(MD)No.20346/2023
For the Appellants/Petitioners: K. Kesavan
For the Respondents: N. Ramesh Arumugam
The Internal Committee established under the POSH Act acts as an inquiring authority, but its findings do not preclude the disciplinary authority from initiating a separate domestic inquiry under service rules; such additional procedure provides a benefit to the delinquent by ensuring a robust evidentiary trial.
Headnote:(A) Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 - Sections 6, 11, 13 and 28 - Tamil Nadu Civil Services (Discipline & Appeal) Rules - Rule 17(b) - Disciplinary proceedings against government servant for sexual harassment - Internal Committee constituted under POSH Act submitted a report finding allegations proved - Petitioner contended procedural illegality due to subsequent appointment of an Enquiry Officer - Held, POSH Act does not derogate from other laws; appointment of an Enquiry Officer constitutes an additional opportunity for defense and is not illegal or prejudicial to the delinquent. (Paras 10, 11)
(B) Natural Justice - Domestic enquiry - Petitioner alleged violation of principles of natural justice and lack of witness presence - Procedure adopted ensured multiple rounds of inquiry with sufficient opportunities for cross-examination including witnesses requested by the delinquent - No procedural infirmity found. (Paras 16, 21)
Facts of the case:
The petitioner, working as an Office Superintendent, faced allegations of sexual harassment from a staff nurse. Following an Internal Committee report under the POSH Act finding the charges proved, disciplinary proceedings were initiated, and a separate Enquiry Officer was appointed. Petitioner challenged the proceedings, alleging procedural lapses, failure to conduct a joint enquiry, and bias in the committee report.
Findings of Court:
The court found that the disciplinary action followed due process. The contention that the Enquiry Officer's appointment was illegal because of the Internal Committee's involvement was rejected as the former served to provide additional safeguards. Evidence from multiple witnesses corroborated the charges, and procedural fairness was maintained.
Issues: Whether the constitution of a separate disciplinary inquiry after the POSH Act committee report is illegal; whether principles of natural justice were violated.
Ratio Decidendi: The Internal Committee under the POSH Act is complementary to service rules, not exclusive; hence, the employer may initiate formal disciplinary proceedings as a safer, more rigorous process to ensure fairness.
Result: Writ Petition dismissed.
| Table of Content |
|---|
| 1. procedural challenges to sexual harassment inquiry initiation. (Para 1 , 2 , 3) |
| 2. historical context and investigation timeline of harassment complaints. (Para 4 , 5 , 6) |
| 3. interaction between posh act proceedings and service rules. (Para 7 , 8 , 9 , 10 , 11) |
| 4. compliance with principles of natural justice and joint inquiry. (Para 12 , 13 , 14 , 15 , 16 , 17) |
| 5. evidence assessment and final disciplinary adjudication. (Para 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27) |
Prayer: Writ Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari by calling for the entire records pertaining to impugned order passed by the 1st Respondent vide his proceedings in Ref. No.26325/ESI/SC/2021 dated 16.06.2023 and the Impugned Inquiry Report of the 3rd Respondent and quash the same.
For Petitioner : Mr.K.Kesavan
For Respondents : Mr.N.Ramesh Arumugam, Government Advocate for RR1 to 4
ORDER
Heard Mr.K.Kesavan, the learned counsel for the petitioner and Mr.N.Ramesh Arumugam, the learned Government Advocate for the respondents 1 to 4.
2. The petitioner was working as an Office Superintendent at Government ESI Dispensary, Nagercoil. The fifth respondent sent a representation dated 29.04.2021 to the concerned superior authority to constitute Vishaka Committee for enquiring her complaint given against the petitioner. On 01.07.2021, the enquiry was conducted and the report was sent to the first respondent. Basing on that report, charges have been framed against the petitioner. Aggrieved over the same, the petitioner has filed a Writ Petition in W.P(MD). No. 2781 of 2022 and the same was disposed by observing that all the disputed facts on merits are to be adjudicated by the competent authority by affording an opportunity to all the parties by following the procedures as contemplated under the statute and rules in force. On 10.06.2022, the third respondent was appointed as an Enquiry Officer by the first respondent. In the said enquiry, the charges against the petitioner were proved. Aggrieved over the same, the petitioner has filed the present writ petition.
3. Mr.K.Kesavan, the learned counsel for the petitioner, submitted that the complaint given by the fifth respondent alleging sexual harassment is false; for the purpose of inquiring the complaints of sexual harassment an Internal Committee established in each department or office for inquiring such complaints shall be deemed to be the Inquiring Authority appointed by the Disciplinary Authority and the Internal Committee shall hold the enquiry as far as practicable in accordance with the procedure laid down under 17(b) of the Tamil Nadu Civil Services Discipline and Appeal Rules; as the above procedure was not followed the impugned order passed by the first respondent is illegal; there is violation of principles of natural justice; no appropriate opportunity was given to the petitioner during the domestic enquiry and witnesses were not examined in his presence; when the complaint has been given against the petitioner and one Thanu, the co delinquent was not enquired along with the petitioner and that is in violation of Rule 9A of the Tamil Nadu Civil Services (Discipline & Appeal) Rules; in an enquiry conducted on 13.08.2019 on the very same allegations the charges were not proved and closed; the police complaint given by the fifth respondent’s husband was also withdrawn by the fifth respondent; the report of the Internal Committee (Vishaka Committee) is improper because the members of Non-Governmental Organisations have not signed; on 02.08.2021 the petitioner raised an objection that the signature of members of Non-Governmental Organisations was not found in the impugned committee report, however they were found in the committee report dated 07.07.2021and hence it is anti-dated; there is no reference about the other delinquent Thanu in the report; the fifth respondent is in the habit of filing false complaints of this nature.
4. Mr.N.R
