Dr Sohail Malik vs Union Of India

2025 INSC 1415 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 404 OF 2024

DR. SOHAIL MALIK APPELLANT(S)

VERSUS

UNION OF INDIA & ANR. RESPONDENT(S)

JUDGMENT

J.K. Maheshwari J.

1. Assailing the final judgment dated 30.06.2023 passed by the

High Court of Delhi at New Delhi (hereinafter referred to as “High

Court”) in WP (C) 8624/2023 confirming the judgment dated

23.06.2023 of the Central Administrative Tribunal, Principal

Bench, New Delhi (hereinafter referred to as “CAT”) in OA No.

1838/2023, the instant appeal has been preferred. Signature Not Verified Digitally signed by

2. NIDHI AHUJA Date: 2025.12.10 18:03:30 IST The jurisdictional challenge by the Appellant in the present Reason:

case, inter alia relates to whether the Internal Complaints

1 Committee (hereinafter referred to as “ICC”) constituted at a

certain Department of the Government of India can entertain a

complaint under the Sexual Harassment of Women at Workplace

(Prevention, Prohibition and Redressal) Act, 2013 (hereinafter

referred to as “POSH Act”) against the Appellant who was working

at a different Department of the Government of India at the

relevant time.

FACTS

3. The Appellant is a 2010 batch officer of the Indian Revenue

Service (hereinafter referred to as “IRS”) who, at the relevant point

of time, was posted as OSD, Investigation, Central Board of Direct

Taxes, Delhi. A 2004 batch Indian Administrative Service

(hereinafter referred to as “IAS”) officer (hereinafter referred to as

“aggrieved woman”) who was, at the relevant time, posted as

Joint Secretary, Department of Food and Public Distribution

alleged that on 15.05.2023, the Appellant sexually harassed her at

her workplace, which was at Krishi Bhawan, New Delhi.

4. An FIR bearing No. 53/2023 was registered by the aggrieved

woman against the Appellant on 16.05.2023 under Sections 354,

354D, 506, 509 of the Indian Penal Code, 1860 (hereinafter

2 referred to as “IPC”). As stated across the Bar, chargesheet has

been filed in the said case on 09.03.2024 under Sections 354, 354-

D, 506, 509, 201 and 204 of IPC and Section 67 of the Information

Technology Act, 2000 and the criminal case is pending.

5. Subsequently, a complaint under the POSH Act was

presented before the ICC constituted under Section 9 of the POSH

Act at the aggrieved woman’s department / workplace, i.e., the

Department of Food and Public Distribution on 24.05.2023.

6. Since the present appeal arises out of the challenge to the

jurisdiction of the ICC, we are not concerned with the fate of the

criminal case ensuing out of the incident and are not delving into

the particular facts and details as contained in the complaint.

7. Pursuant to the complaint by the aggrieved woman, the ICC

through its Member Secretary issued a meeting notice/order

bearing F No. 01/01/2023-ICC dated 13.06.2023 to the Appellant,

scheduling a hearing for the complaint, for him to appear on

22.06.2023 along with a response to the complaint.

8. It was at this stage, the Appellant filed OA No. 1838/2023

before the CAT seeking direction to set aside the order/notice

dated 13.06.2023 and all consequential proceedings arising

3 therefrom. The CAT dismissed the OA filed by the Appellant, which

has been upheld by the High Court vide the impugned order. Upon

preferring the present appeal before this Court, vide order dated

18.07.2023 it was directed that the inquiry may go on, but the final

outcome of the inquiry shall be kept in a sealed cover.

9. We have been informed across the Bar that the inquiry has

since concluded and we have also been supplied a copy of the

inquiry report and proceedings in sealed cover, which is awaiting

subsequent action, subject to outcome of the present appeal.

SCHEME OF THE POSH ACT

10. The scheme of the POSH Act itself is drawn from the

monumental judgment of this Court in Vishaka v. State of

Rajasthan1 in a writ petition under Article 32 of the Constitution

of India filed by social activists, NGOs and public-spirited persons,

where this Court came up with various guidelines to enforce the

fundamental right of ‘gender equality’ and ‘right to life and liberty’

under Articles 14, 15, 19(1)(g) and 21 of the Constitution of India.

While coming up with the guidelines, the Court interpreted Article

14, 42 and 52(A) of the Constitution of India and also drew

1 (1997) 6 SCC 241.

4 inspiration from recommendations of the Convention on the

Elimination of All Forms of Discrimination Against Women

(hereinafter referred to as “CEDAW”).

11. This Court, even prior to the POSH Act being legislated,

through an interim order dated 26.04.2004 in Medha Kotwal Lele

v. Union of India2 clarified that the Complaints Committee

envisaged by the Court in Vishaka (Supra) shall be deemed to be

an inquiry authority for the purposes of the Central Civil Services

(Conduct) Rules, 1964 (hereinafter referred to as “CCS (Conduct)

Rules”.

“2. Notice had been issued to several parties including the Governments concerned and on getting appropriate responses from them and now after hearing the learned Attorney General for UOI and the learned counsel, we direct as follows:

“Complaints Committee as envisaged by the Supreme Court in its judgment in Vishaka case [(1997) 6 SCC 241 : 1997 SCC (Cri) 932] , SCC at p. 253, will be deemed to be an inquiry authority for the purposes of the Central Civil Services (Conduct) Rules, 1964 (hereinafter called the CCS Rules) and the report of the Complaints Committee shall be deemed to be an inquiry report under the CCS Rules. Thereafter the disciplinary authority will act on the report in accordance with the Rules.””

12. The POSH Act itself was notified on 09.12.2013. Along with

the said Act came to be enacted The Sexual Harassment of Women

2 (2013) 1 SCC 311.

5 at Workplace (Prevention, Prohibition and Redressal) Rules, 2013

(hereinafter referred to as “POSH Rules”).

13. Section 2(a) of the POSH Act defines the term ‘aggrieved

woman’:

“(a) “aggrieved woman” means -

(i) in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;

(ii) in relation to dwelling place or house, a woman of any age who is employed in such a dwelling place or house;”

14. The term ‘employee’ has been defined in Section 2(f) of the

POSH Act as:

“(f) “employee” means a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name;”

15. The term ‘employer’ has been defined in Section 2(g) of the

POSH Act as:

“(g) “employer’ means –

6

(i) in relation to any department, organisation, undertaking, establishment, enterprise, Institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority, as the case maybe, may by an order specify in this behalf;

(ii) in any workplace not covered under sub-clause (i), any person responsible for the management, supervision and control of the workplace.

Explanation. —For the purposes of this sub-clause “management” includes the person or board or committee responsible for formulation and administration of polices for such organisation;

(iii) in relation to workplace covered under sub-clauses (i) and (ii), the person discharging contractual obligations with respect to his or her employees;

(iv) in relation to a dwelling place or house, a person or a household who employs or benefits from the employment of domestic worker, irrespective of the number, time period or type of such worker employed, or the nature of the employment or activities performed by the domestic worker;”

16. The word ‘respondent’ has been defined in Section 2(m) of the

POSH Act as “a person against whom the aggrieved woman has

made a complaint under section 9”.

17. Most importantly, the word ‘workplace’ has been defined in

Section 2(o) of the POSH Act as follows:

“(o) “workplace” includes –

7

(i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;

(ii) any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service;

(iii) hospitals or nursing homes;

(iv) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;

(v) any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey;

(vi) a dwelling place or a house;

18. Section 2(h) of the POSH Act defines ‘Internal Committee’ as

an Internal Complaints Committee constituted under Section 4 of

the POSH Act, which, in turn, provides for constitution of the

Internal Complaints Committee, its composition, membership and

manner of removal of members.

19. The definition of the term ‘sexual harassment’ itself has been

laid down in Section 2(n) of the POSH Act, while Section 3(2) of the

8 Act further explains ‘acts’ or ‘circumstances’ which may amount to

sexual harassment. Section 3(1) of the POSH Act provides that ‘No

woman shall be subjected to sexual harassment at any workplace’.

20. A complaint of sexual harassment may be made by an

aggrieved woman under Section 9 of the POSH Act, as quoted

below:

“9. Complaint of sexual harassment.– (1) Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident:

Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing:

Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit not exceeding three months , if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.

(2) Where the aggrieved woman is unable to make a complaint on account of her physical or mental in capacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.”

21. The ICC or the Local Committee, upon receiving a complaint,

may, at the request of the aggrieved woman, take steps to settle

9 the matter between the aggrieved woman and the respondent

through ‘conciliation’ under Section 10 of the POSH Act.

22. In case an inquiry is to be made into the complaint filed by

an aggrieved woman, Section 11 of the POSH Act lays down the

provision for inquiry into the complaint. It is a major bone of

contention in the present case and is relevant, hence quoted as

follows:

“11. Inquiry into complaint.– (1) Subject to the provisions of section 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 section 509 of the Indian Penal Code (45 of 1860), and any other relevant provisions of the said Code where applicable:

Provided that where the aggrieved woman informs the Internal Committee or the Local Committee, as the case may be, that any term or condition of the settlement arrived at under sub-section (2) of section 10 has not been complied with by the respondent, the Internal Committee or the Local Committee shall proceed to make an inquiry into the complaint or, as the case may be, forward the complaint to the police:

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. (2) Notwithstanding anything contained in section 509 of the Indian Penal Code (45 of 1860), the court may, when the

10 respondent is convicted of the offence, order payment of such sums as it may consider appropriate, to the aggrieved woman by the respondent, having regard to the provisions of section 15.

(3) For the purpose of making an inquiry under sub-section (1), the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents; and

(c) any other matter which may be prescribed.

(d) The inquiry under sub-section (1) shall be completed within a period of ninety days.”

23. Thereafter, Section 13 of the POSH Act lays down the

procedure which is to be followed upon completion of an inquiry.

The said provision is also relevant and is therefore quoted herein:

“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, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties.

(2) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter.

(3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall

11 recommend to the employer or the District Officer, as the case may be—

(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;

(ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section 15:

Provide that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman:

Provided further that in case the respondent fails to pay the sum referred to in clause (ii), the Internal Committee or as, the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.

(4) The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him.”

24. The POSH Act, in Section 19, also imposes an active duty on

the ‘employer’ to prohibit and prevent sexual harassment at the

workplace and to co-operate with the working of the ICC. The said

provision is relevant, and is therefore reproduced as under:

“19. Duties of employer.– Every employer shall –

(a) provide a safe working environment at the workplace with shall include safety from the persons coming into contact at the workplace;

12 (b) display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under sub-section (1) of section 4;

(c) organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;

(d) provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;

(e) assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;

(f) make available such information to the Internal Committee or the Local Committee, as the case be, as it may require having regard to the complaint made under sub- section (1) of section 9;

(g) provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force;

(h) cause to initiate action, under the Indian Penal Code (45 of 1860) or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;

(i) treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;

(j) monitor the timely submission of reports by the Internal Committee.”

PROCEEDINGS BEFORE THE CAT AND HIGH COURT

25. The thrust of the challenge as presented by the Appellant

before the CAT and the High Court, in short, was that since the

Department of Revenue was the controlling authority of the

13 Appellant, the ICC constituted under the Department of Food and

Public Distribution did not have the jurisdiction to entertain the

complaint filed by the aggrieved woman under Section 9 of the

POSH Act. As such, the Appellant contended that it was only the

ICC constituted under his own Department which can institute

ICC proceedings against him. To buttress this argument, much

emphasis was laid by the Appellant on Section 11 of the POSH Act.

The Appellant urged that use of the words ‘where the respondent

is an employee’ in Section 11 implies that the inquiry into a

complaint for sexual harassment must be done by the ICC

constituted at the workplace where the Appellant is employed.

Consequently, he argued that the workplace of the aggrieved

woman and the ‘respondent’ alleged of the act of sexual

harassment have to be the same, for the POSH Act to apply.

26. The CAT dismissed the challenge laid out by the Appellant

and held that the word ‘where’ used in Section 11 of the POSH Act

relates to difference in procedure to be followed by both types of

committees (ICC or Local Committee) when the 'respondent’ is an

employee and when he is a domestic worker. The CAT also

observed that the word ‘workplace’ has been defined in the POSH

Act in relation to the aggrieved woman and the complaint under

14 Section 9 of the POSH Act may be enquired upon even when the

‘respondent’ has no relation whatsoever with the workplace of the

aggrieved woman.

27. The High Court, in the impugned order, engaged in purposive

interpretation of the POSH Act and held that if the provisions of

the POSH Act are interpreted in the manner as suggested by the

Appellant, it shall be contrary to the intent and purpose behind

enacting the POSH Act. The Court agreed with the interpretation

of Section 11 of the POSH Act by the CAT and held that Section

11(1) does not require that the aggrieved woman and the

‘respondent’ must be working in the same Department. The High

Court also interpreted the phrase ‘service rules applicable to the

respondent’ as mentioned in Section 11 to hold that this phrase

itself shows that the ‘respondent’ need not be an employee of the

same workplace. The High Court also interpreted Section 13 of the

POSH Act and held that the ICC, on finding that sexual

harassment has been proved, may recommend to the employer or

District Officer of the ‘respondent’ to take action in accordance

with services rules applicable to them.

15 ARGUMENTS ADVANCED

28. Learned Senior Counsel Mr. Vipin Sanghi appearing for the

Appellant has argued with vehemence that for civil servants, the

CCS (Conduct) Rules are a complete code on sexual harassment

and the correct recourse against a civil servant, therefore, is

institution of disciplinary proceedings in accordance with Rule 3C

of the CCS (Conduct) Rules. It is urged that such a disciplinary

proceeding can only be handled by the ICC constituted in his

department, since his controlling authority is different from the

controlling authority of the aggrieved woman where ICC

proceedings have been instituted. Placing heavy reliance on

Section 13 of the POSH Act, he argues that the ICC constituted

where the appellant is an employee, solely has jurisdiction to

entertain complaints of sexual harassment, since it is only his

employer which may take action based on the findings of the ICC.

Learned Senior Counsel also urged that the use of the phrase

‘where the respondent is an employee’ in Section 11 necessarily

requires that the ICC proceedings must be instituted at the

workplace of the Appellant. It has been argued that as per Section

19(h) of the POSH Act, the only remedy available to the aggrieved

woman when the perpetrator of an act of sexual harassment is not

16 an employee of the same department, is to initiate action under

the IPC or any other law.

29. Per contra, learned Assistant Solicitor General, Ms.

Aishwarya Bhati has argued that such an interpretation of Section

11 and other provisions of the POSH Act would cause violence to

the general ethos of the POSH Act and defeat its very purpose. She

has urged that the POSH Act was legislated as a special law for

women in order to prevent the hardship faced by women at their

workplace and any interpretation of the Act must be done keeping

this object in mind. The wide ambit given to the word ‘workplace’

in Section 2(o) of the POSH Act and the word ‘employer’ in Section

2(g) of the POSH Act shows the legislative intent to ensure sexual

harassment complaints by all women are duly addressed and

enquired into. There is no vacuum in the POSH Act for dealing with

inter-departmental enquiries of sexual harassment complaints.

Under Section 13(3), upon allegations of sexual harassment being

proved, it has been said that the employer or the district officer

shall take necessary action, which duly addresses the present

situation. She argued that the option to initiate criminal

proceedings under Section 19(h) cannot be read to be in derogation

or exclusion of the proceedings under the POSH Act.

17 ISSUES FOR CONSIDERATION

30. After hearing learned counsel for the parties at length and on

perusal of the facts and material placed on record, the following

issues arise for consideration:

(i) Whether the ICC constituted in one department of the

Central Government has the jurisdiction to entertain a

complaint of sexual harassment under the POSH Act

against an employee of a different department of the

Central Government?

(ii) Whether the use of the words ‘where the respondent is

an employee’ as contained in Section 11 of the POSH

Act would mandate that ICC proceedings must be

instituted and carried out at the workplace of the

‘respondent’ instead of the workplace of the aggrieved

woman where incident occurred and complaint was

made?

(iii) If the answer to Issue No. 2 is in the negative, under the

scheme of Section 13, how is action supposed to be

taken by the department of the ‘respondent’ in

18 pursuance of the findings of the ICC constituted at the

aggrieved woman’s department?

(iv) Whether the proceedings of the ICC constituted at the

workplace of the aggrieved woman, in the present case,

have caused any prejudice to the Appellant, warranting

interference by this Court?

ANALYSIS OF ISSUES I and II

Since both issues are intertwined, we are appreciating and

answering contentions in respect of these issues collectively:

31. The dispute in the present case is confined to the

jurisdictional challenge made by the Appellant herein to the

institution of ICC proceedings against him by the ICC constituted

at the workplace of the aggrieved woman. We have gone through

the documents on record and heard the learned counsel for the

parties at length. In order to resolve the present case, we must

engage in interpretation of various provisions contained in the

POSH Act.

19 Principles of Statutory Interpretation

32. Language employed in a statute is the best aid for statutory

interpretation. The first and primary rule of construction is the

intention of the Legislature and the same must be found in the

words used by the Legislature itself, as held in Kanai Lal Sur v.

Paramnidhi Sadhukhan.3 However, where there is doubt or

ambiguity about the meaning of the words used, interpretation

must be made keeping in mind the object and purpose of the

statute. Therefore, both text and context of a statute have their

own relevance while interpreting provisions of a statute. This

Court, in RBI v. Peerless General Finance & Investment Co.

Ltd.4 observed as thus:

“33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these

3 Kanai Lal Sur v. Paramnidhi Sadhukhan, 1957 SCC OnLine SC 8.

4 (1987) 1 SCC 424.

20 glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression “Prize Chit” in Srinivasa [(1980) 4 SCC 507 :

(1981) 1 SCR 801 : 51 Com Cas 464] and we find no reason to depart from the Court's construction.”

33. More recently, in Eera v. State (NCT of Delhi), 5 Dipak Misra,

J. in his separate concurring opinion, interpreted various

judgments, both domestic and international, and held that along

with textual interpretation, purpose, intent and context must also

be seen, especially when interpreting a social welfare legislation:

“64. I have referred to the aforesaid authorities to highlight that legislative intention and the purpose of the legislation regard being had to the fact that context has to be appositely appreciated. It is the foremost duty of the Court while construing a provision to ascertain the intention of the legislature, for it is an accepted principle that the legislature expresses itself with use of correct words and in the absence of any ambiguity or the resultant consequence does not lead to any absurdity, there is no room to look for any other aid in the name of creativity. There is no quarrel over the proposition that the method of purposive construction has been adopted keeping in view the text and the context of the legislation, the mischief it intends to obliterate and the fundamental intention of the legislature when it comes to social welfare legislations. If the purpose is defeated, absurd result is arrived at. The Court need not be miserly and should have the broad attitude to take recourse to in

5 (2017) 15 SCC 133.

21 supplying a word wherever necessary. Authorities referred to hereinabove encompass various legislations wherein the legislature intended to cover various fields and address the issues. While interpreting a social welfare or beneficent legislation one has to be guided by the “colour”, “content” and the “context of statutes” and if it involves human rights, the conceptions of Procrustean justice and Lilliputian hollowness approach should be abandoned. The Judge has to release himself from the chains of strict linguistic interpretation and pave the path that serves the soul of the legislative intention and in that event, he becomes a real creative constructionist Judge.

65. I have perceived the approach in Hindustan Lever Ltd. [Hindustan Lever Ltd. v. Ashok Vishnu Kate, (1995) 6 SCC 326 : 1995 SCC (L&S) 1385] and Deepak Mahajan [Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 : 1994 SCC (Cri) 785] , Pratap Singh [Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551 : 2005 SCC (Cri) 742] and many others. I have also analysed where the Court has declined to follow the said approach as in R.M.D. Chamarbaugwalla [R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628] and other decisions. The Court has evolved the principle that the legislative intention must be gatherable from the text, content and context of the statute and the purposive approach should help and enhance the functional principle of the enactment. That apart, if an interpretation is likely to cause inconvenience, it should be avoided, and further personal notion or belief of the Judge as regards the intention of the makers of the statute should not be thought of. And, needless to say, for adopting the purposive approach there must exist the necessity. The Judge, assuming the role of creatively constructionist personality, should not wear any hat of any colour to suit his thought and idea and drive his thinking process to wrestle with words stretching beyond a permissible or acceptable limit. That has the potentiality to cause violence to the language used by the legislature. Quite apart from, the Court can take aid of casus omissus, only in a case of clear necessity and further it should be discerned from the four corners of the statute. If the meaning is intelligible, the said principle has

22 no entry. It cannot be a ready tool in the hands of a Judge to introduce as and what he desires.”

34. R.F. Nariman, J. in his separate concurring opinion in Eera

(Supra), agreed with adopting principles of interpretation which

duly address both text and context of a statute. Relevant

paragraphs of the said judgment are quoted herein for ready

reference:

“124. Indeed, the modern trend in other Commonwealth countries, including UK and Australia, is to examine text as well as context, and object or purpose as well as literal meaning. Thus, in Oliver Ashworth (Holdings) Ltd. v. Ballard (Kent) Ltd. [Oliver Ashworth (Holdings) Ltd. v. Ballard (Kent) Ltd., 2000 Ch 12 : (1999) 3 WLR 57 :

(1999) 2 All ER 791 (CA)] , Laws, L.J. stated the modern rule as follows : (Ch p. 34) “By way of introduction to the issue of statutory construction I should say that in my judgment it is nowadays misleading — and perhaps it always was — to seek to draw a rigid distinction between literal and purposive approaches to the interpretation of Acts of Parliament. The difference between purposive and literal construction is in truth one of degree only. On received doctrine we spend our professional lives construing legislation purposively, inasmuch as we are enjoined at every turn to ascertain the intention of Parliament. The real distinction lies in the balance to be struck, in the particular case, between the literal meaning of the words on the one hand and the context and purpose of the measure in which they appear on the other. Frequently there will be no opposition between the two, and then no difficulty arises. Where there is a potential clash, the conventional English approach has been to give at least very great and often decisive weight to the literal meaning of the enacting words. This is a tradition which I think is weakening, in face of the more purposive approach enjoined for the interpretation of legislative

23 measures of the European Union and in light of the House of Lords' decision in Pepper (Inspector of Taxes) v. Hart [Pepper (Inspector of Taxes) v. Hart, 1993 AC 593 : (1992) 3 WLR 1032 : (1993) 1 All ER 42 : 1992 UKHL 3 (HL)] . I will not here go into the details or merits of this shift of emphasis; save broadly to recognise its virtue and its vice. Its virtue is that the legislator's true purpose may be more accurately ascertained. Its vice is that the certainty and accessibility of the law may be reduced or compromised. The common law, which regulates the interpretation of legislation, has to balance these considerations.”

127. It is thus clear on a reading of English, US, Australian and our own Supreme Court judgments that the “Lakshman Rekha” has in fact been extended to move away from the strictly literal rule of interpretation back to the rule of the old English case of Heydon [Heydon case, (1584) 3 Co Rep 7a :

76 ER 637] , where the Court must have recourse to the purpose, object, text and context of a particular provision before arriving at a judicial result. In fact, the wheel has turned full circle. It started out by the rule as stated in 1584 in Heydon case [Heydon case, (1584) 3 Co Rep 7a : 76 ER 637] , which was then waylaid by the literal interpretation rule laid down by the Privy Council and the House of Lords in the mid-1800s, and has come back to restate the rule somewhat in terms of what was most felicitously put over 400 years ago in Heydon case [Heydon case, (1584) 3 Co Rep 7a : 76 ER 637] .”

35. Another important principle which we must bear in mind is

that a part of a section cannot be read in isolation, the

construction of the entire section must be made as a sum of its

parts and no word or phrase thereof can be picked out in isolation

to give a certain meaning to the section as a whole. This Court, in

24 Balasinor Nagrik Coop. Bank Ltd. v. Babubhai Shankerlal

Pandya6 held:

“…It is an elementary rule that construction of a section is to be made of all parts together. It is not permissible to omit any part of it. For, the principle that the statute must be read as a whole is equally applicable to different parts of the same section…..”

Textual Interpretation of Section 11 of the POSH Act

36. Although we have quoted the entire provision of Section 11 of

the POSH Act above, in the interest of lucidity and easy

comprehension, Section 11(1) is reproduced as follows:

“(1) Subject to the provisions of section 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 section 509 of the Indian Penal Code (45 of 1860), and any other relevant provisions of the said Code where applicable:

Provided that where the aggrieved woman informs the Internal Committee or the Local Committee, as the case may be, that any term or condition of the settlement arrived at under sub-section (2) of section 10 has not been complied with by the respondent, the Internal Committee or the Local Committee shall proceed to make an inquiry into the

6 (1987) 1 SCC 606.

25 complaint or, as the case may be, forward the complaint to the police:

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.”

37. The Appellant’s primary argument is that ‘where the

respondent is an employee’ as mentioned in Section 11 of the

POSH Act must be read to mean that the ICC constituted at the

workplace of the ‘respondent’ alone has jurisdiction to entertain a

sexual harassment complaint against him by the aggrieved woman

and not the ICC constituted at the workplace of the aggrieved

woman under the provisions of the POSH Act.

38. To examine the said contention, the meaning of the word

‘where’ as used in the context of Section 11 becomes significant. If

the expression ‘where’ were to denote a certain place / location,

only then the argument of the Appellant would hold ground. On

examination of the colloquial meaning of the word ‘where’ as it is

used in common parlance, the Concise Oxford English Dictionary,7

defines the word ‘where’ as ‘in or to what place or position’ or ‘in

what direction or respect’.

7 10th Edition, 2002, Pg. 1629.

26

39. Coming to the legal definition, however, the Stroud’s Judicial

Dictionary of Words and Phrases,8 refers to the judgement of the

House of Lords in Davies Jenkins & Co. Ltd. and Davies

(Inspector of Taxes)9 in which case a section reading ‘Subject to

the provisions of this section, where a company has a deficit for tax

purposes during any accounting period of the company, and

receives a subvention payment in respect of that period from an

associated company having a surplus for tax purposes in the

corresponding period, then …’ was being interpreted by the House

of Lords, and the expression ‘where’ was interpreted in the

following manner:

“The word “where” clearly does not refer to a place. It is used in the sense of “if” or “whenever.”

40. P. Ramanatha Aiyar’s Advanced Law Lexicon,10 and Justice

C.K. Thakker’s Encyclopaedic Law Lexicon,11 while defining the

word ‘where’, both refer to the judgement of this Court in S.G.

Glass Works (P) Ltd. v. CCE,12 in which this Court was

interpreting an Excise notification which read as under –

8 South Asian Edition, 2008, Volume 3 at Pg. 3009.

9 [1968] AC 1097.

10 7th Edition, Volume 4, at Pg. 6754.

11 2008/2009 Edition, Volume 4 at Pg. 5030.

12 (1995) 1 SCC 680.

27 ‘“Glassware including tableware produced by semi-

automatic process, that is to say, where molten glass is taken to the first mould manually and where either compressed air or mechanically operated press is used. …”

In respect to use of the expression ‘where’, this Court interpreted

the notification as thus:

“ The use of the word ‘where’ before ‘molten glass’ and ‘compressed air’ is significant. According to dictionary the word ‘where’ may mean ‘place or situation’. In the context it has been used it is not descriptive of any place but has been used in the sense of relation or situation. In other words what the notification contemplates is that if the glassware is manufactured by taking the molten glass manually to the first mould and then the compressed air or mechanically operated press is applied to it either in the first or second mould then it would be covered in the notification. If the intention would have been to confine it to first mould then it was not necessary to use ‘where’ a second time. It is disjunctive and has been used to denote the same meaning, namely, if in processing of it compressed air is used then it is deemed to be a production by semi-automatic process. The Tribunal in reading the words ‘where either compressed air or mechanically operated press’ along with the earlier expression ‘first mould’ committed an error of law.”

41. Keeping in view the aforementioned judicial pronouncements

and the legal definition, when we look at the construction of

Section 11(1) of the POSH Act, the word ‘where’ is quite clearly

used in the context of a situation, rather than a place. In our

interpretation, Section 11(1) envisages three distinct situations or

contingencies, followed by how inquiry into a complaint is to be

carried out by the ICC or Local Committee (as the case may be):

28 (i) ‘Where’ (In case) the ‘respondent’ is an ‘employee’, the

ICC shall proceed to make inquiry into the complaint,

in accordance with the provisions of the service rules

applicable to the ‘respondent’;

(ii) ‘Where’ (In case) no such rules exist, ICC shall proceed

to make inquiry into the complaint, in such manner as

may be prescribed;

(iii) ‘Or’ (in case) of a domestic worker, the Local Committee

shall, if prima facie case exists, forward the complaint

to the police, within a period of seven days for

registering the case under Section 509 of the IPC and

any other relevant provisions of the said Code where

applicable.

42. In our view, the use of the word ‘where’ as it occurs in the

contingency (i) and (ii) as denoted above, clearly refers to two

different conditions precedent / situations, where contingency (i)

relates to a situation in case the ‘respondent’ is an ‘employee’

under the meaning as prescribed under the POSH Act, inquiry

must be made by the ICC in accordance with the service rules

applicable to him, and contingency (ii) relates to a situation in case

no such rules exist, it shall be inquired into by the ICC in such

29 manner as prescribed. The contingency (iii) is a different situation

altogether – in case the ‘respondent’ is a domestic worker, the Local

Committee shall, on taking a prima facie view about the existence

of a case against the ‘respondent’, forward the complaint to the

police.

43. It is pertinent to note that contingency (i) and contingency (iii)

as denoted above, operate in the form of ‘either-or’. If the

‘respondent’ is an employee, the inquiry shall be conducted by the

ICC either in accordance with the respondent’s service rules, or in

case there are no applicable service rules, in the manner as

prescribed. Thereafter, the word ‘or’ has been used, to lay down

what must be the procedure when the ‘respondent’ is a domestic

worker. The grammatical function of the word ‘where’ as appearing

in Section 11 of the POSH Act is that of a ‘conditional conjunction’

(similar to ‘in that case’ or ‘if’). It introduces a scenario,

contingency or condition and lays down the action which follows.

44. Section 11(1) essentially lays down what the ICC or the Local

Committee is supposed to do upon receiving a complaint from the

aggrieved woman. Use of the phrase ‘where the respondent is an

employee’ is essentially a procedural trigger, directing the ICC to

apply the service rules which are applicable to the ‘respondent’, it

30 is not a jurisdictional constraint limiting a particular ICC to hear

the complaint.

45. This interpretation of Section 11(1) is borne out of a plain

reading of the words used by the legislature in the said section. It

is pertinent to state that the principle as laid down in Balasinor

Nagrik Coop. Bank Ltd. (Supra) is squarely applicable to the

present case and the entire section has to be read as a whole.

When the section is read as a whole, it has been constructed in the

form of ‘where….and where….or….’, detailing three different

contingencies and the procedure to be followed in each

contingency. Merely the phrase ‘where the respondent is an

employee’ cannot be read in isolation without taking into view the

entire section, and all parts of the section must be read together to

find out a workable conclusion.

46. In view of the above, the inescapable conclusion, upon plain

reading of the text of Section 11(1) of the POSH Act is that the

argument advanced by the Appellant is liable to be rejected. As

discussed above, in case the ‘respondent’ is an ‘employee’, the ICC

is obligated to apply the service rules applicable to him, but the

use of the phrase ‘where the respondent is an employee’ does not

mean that the ICC constituted at the workplace of the aggrieved

31 woman cannot exercise jurisdiction. As such, the construction of

Section 11 is in the nature of a procedural section rather than one

that lays down jurisdictional restraints.

Whether the ‘respondent’ must be an employee of the same

workplace as the ‘aggrieved woman’?

47. That being said, the requirement of Section 11(1) as we have

concluded above, is that in case the ‘respondent’ is an ‘employee’,

the inquiry by the ICC must be in accordance with the service rules

applicable to him, if service rules do not exist, it shall be conducted

as may be prescribed, or if he is a domestic worker, the Local

Committee must forward the complaint to the police. The

definitions of the word ‘employee’ and ‘workplace’ as quoted above

in this judgement at their respective places are completely neutral,

in the sense that they do not suggest that the ‘respondent’ must

necessarily be an employee of the workplace where the aggrieved

woman works.

48. The word ‘respondent’ has been defined in Section 2(m) of the

POSH Act as ‘a person against whom the aggrieved woman has

made a complaint under Section 9’. It does not require the

‘respondent’ to be someone working at the same workplace as the

32 aggrieved woman, rather the exact words used are ‘a person’ which

can be any person against whom complaint has been made. The

word ‘employee’ as defined in Section 2(f) of the POSH Act – further

provides that it means a ‘person employed at a workplace…’. The

word ‘workplace’ itself which is defined in Section 2(o) of the POSH

Act, has been given a wide meaning, particularly in clause (v) of

Section 2(o), which posits that the word ‘workplace’ also includes

‘any place visited by the employee arising out of or during the

course of employment including transportation by the employer for

undertaking such journey’.

49. The expansive definitions of these words enable the ICC

constituted at the aggrieved woman’s workplace to exercise

jurisdiction over an employee of a different workplace. None of

these definitions provide that the ‘respondent’ must necessarily be

an employee of the same workplace where the aggrieved woman

works. Any person against whom a complaint is filed by the

aggrieved woman before the ICC constituted at her workplace

under Section 9, is a ‘respondent’ under the POSH Act and as per

the scheme of Section 11(1), if the ‘respondent’ is an ‘employee’,

his service rules shall apply and in the absence of service rules,

33 inquiry shall be conducted as prescribed, but the ‘respondent’

need not necessarily be an employee of the same ‘workplace’.

50. In this context, it was argued by the appellant that in view of

Section 19(h) of the POSH Act, the only remedy available to the

aggrieved woman when the perpetrator of sexual harassment is an

outsider (employee of a different workplace) is to register a

complaint under the IPC through the employer. We are unable to

agree with this contention, since Section 19(h) makes it a duty of

the employer to facilitate the initiation of action under the IPC if

the aggrieved woman so desires, it is not in derogation or exclusion

of the power to initiate proceedings under the POSH Act. Even

where the ‘respondent’ is not an employee anywhere, criminal

proceedings may be initiated and such initiation of criminal

proceedings must be facilitated by the employer.

Contextual Interpretation of provisions of the POSH Act

51. Even though we have held above that a plain textual reading

of Section 11(1) of the POSH Act conveys the clear meaning that it

creates no bar on the jurisdiction of ICC constituted at the

workplace of the aggrieved woman to inquire into a complaint

against a ‘respondent’ who is an employee of a different

34 ‘workplace’, we also propose to discuss the interpretation of the

provisions of the POSH Act in light of its intent, purpose and

context, in line with the pronouncement of this Court in Eera

(Supra).

52. The long title of the POSH Act and its ‘Preamble’ are relevant

internal aid for the purpose of interpretation and are therefore

quoted herein:

“An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.

WHEREAS sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business with includes a right to a safe environment free from sexual harassment;

AND WHEREAS the protection against sexual harassment and the right to work with dignity are universally recognised human rights by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on the 25th June,1993 by the Government of India;

AND WHEREAS it is expedient to make provisions for giving effect to the said Convention for protection of women against sexual harassment at workplace.”

53. The POSH Act was enacted by the legislature, recognizing the

legislative void which was highlighted by this Court in its seminal

35 judgment in Vishaka (Supra). Its intent is to uphold women’s right

to equality under Articles 14 and 15 and right to a dignified life

under Article 21 of the Constitution of India. The POSH Act does

not merely punish acts of sexual harassment, but actively imposes

a legal duty on employers to prohibit and prevent harassment, it

ensures that the women in each workplace have open access to a

mechanism for redressal of complaints of sexual harassment in

the form of ICC. It aims to bring about safety and accountability in

the workplace in order to enable women to pursue their career

without the fear of a hostile environment. It is thus seen that the

POSH Act is a social welfare legislation and it must be interpreted

as thus.

54. Keeping in mind the object behind the enactment of the POSH

Act, if the aggrieved woman had to approach the ICC constituted

at the workplace of the ‘respondent’ for every third-party incident,

it would fall short of the aforesaid object. The ICC at the workplace

of the ‘respondent’ would be tasked with inquiring into an incident

that may or may not have occurred on their employer's premises

or in relation to their employer's work environment. A narrow

interpretation of provisions of the POSH Act, in order to hold that

only the ICC of the workplace of the ‘respondent’ has jurisdiction

36 to inquire into complaints against him, irrespective of where the

workplace of the aggrieved woman is or where the alleged act of

sexual harassment took place, would undermine the POSH Act’s

remedial social welfare intent since it would create significant

practical hurdles for the aggrieved woman.

55. Such an interpretation would beget several procedural and

psychological barriers for the aggrieved woman. The aggrieved

woman, who has allegedly suffered an act of sexual harassment,

would be compelled to file a complaint before the ICC constituted

at the workplace of the ‘respondent’. It would create a situation

where the aggrieved woman would have to appear before the ICC

at an alien workplace in order to pursue her remedy in law.

56. Even more importantly, the POSH Act, by introducing Section

2(o)(v) which enlarged the scope of ‘workplace’ to include any place

visited by the employee during the course of employment,

including during transportation, has expanded the scope of

‘workplace’ manifold. In such a case, the intent of the legislature

was clearly to prohibit acts of sexual harassment at any place

incidental to work and employment, at any place visited by the

employees during the course of employment. If we were to interpret

the provisions of the POSH Act to hold that only the ICC

37 constituted at the workplace of the ‘respondent’ has the

jurisdiction to entertain complaints and not the ICC constituted at

the aggrieved woman’s workplace, it would defeat the purpose of

such an expanded scope. It will also lead to an absurd situation

where it would be incumbent upon the aggrieved woman to pursue

her remedies, not at her own workplace, but at some other

workplace, irrespective of the distance. It would create a further

barrier preventing the aggrieved woman from seeking her remedies

in law.

57. The taboo around sexual harassment at the workplace and

the fear of stigma which may be attached to the aggrieved woman

as a consequence of a complaint regarding sexual harassment

already poses a massive psychological barrier for the aggrieved

women which actively dissuades them from pursuing their remedy

in law. In such view of the matter also, the intent of the legislature

behind giving such a wide meaning to the word ‘workplace’ to go

beyond the bounds of the traditional meaning implying location of

the office, cannot be brushed aside by narrow construction of other

provisions of the POSH Act. It is for the aforementioned reasons

that we are constrained to reject the argument of the Appellant and

answer Issues 1 and 2 in the above terms.

38 ANALYSIS OF ISSUE III

58. It has been vehemently urged before us by the Appellant that

another reason why only the ICC of the Appellant’s department has

jurisdiction to entertain a complaint under Section 9 of the POSH

Act is that it is only his department which can take disciplinary

action against him, and so for the inquiry carried out by the ICC

and its outcome to have any sanctity, the inquiry must be

conducted by the ICC constituted under the aegis of the

Appellant’s employer.

59. While at first blush the argument might seem persuasive, but

we are not impressed, since it is not in line with the scheme of the

POSH Act. The core issue with this argument is that it fails to

differentiate the authority to inquire into the facts and the

authority to enforce or act on the findings. While the ICC

constituted at the workplace of the aggrieved woman or the

employer may not have the authority to impose a penalty /

punishment on the ‘respondent’ as a consequence of the

proceedings under the POSH Act, its findings can certainly be

acted upon by the employer of the ‘respondent’. Such is the

construction and scheme of Section 13 of the POSH Act as quoted

above. Under Section 13, the inquiry report of the ICC along with

39 its recommendations must be sent to the ‘employer’ and it is

obligated to act upon the recommendations within sixty days. It is

merely the factual inquiry which is to be conducted by the ICC

constituted at the workplace of the aggrieved woman. It cannot be

said, by any stretch of imagination, that the ICC itself is to take

disciplinary action against the ‘respondent’ in case the report

suggests that the allegation has been proved. As intended, the ICC

constituted at the aggrieved woman’s workplace shall send its

recommendations to the ‘employer’ of the ‘respondent’ for further

necessary action, i.e., initiation of disciplinary proceedings as per

service rules, or to take action as prescribed. Section 13 does not

state therein that the employer of the aggrieved woman and the

‘respondent’ must be one and the same. If a factual conclusion is

reached by the ICC constituted at one department, it can very well

be acted on by the employer of the ‘respondent’, even if it is a

different department. It goes without saying that the sanctity of the

report of the ICC is statutorily mandated and all employers are

required to act upon the said report. Even though the ICC is

constituted under a different department, it has a statutory

backing in its constitution and functioning. It is also pertinent to

mention here that if the recommendations of the ICC are brushed

40 aside and not acted on by the employer, a right to appeal has been

provided under Section 18 of the POSH Act.

60. In the present case, the Appellant, who is the ‘respondent’

under the meaning as prescribed in the POSH Act and the

aggrieved woman are both Central Government employees,

belonging to different departments. As discussed above, during the

operation of the guidelines as laid down by this Court in Visakha

(Supra) and prior to the enactment of the POSH Act, this Court

had directed in Medha Kotwal Lele (Supra) that the Complaints

Committee under the guidelines shall be deemed to be an inquiry

authority for the purposes of the CCS Conduct Rules, 1964. In

pursuance of the same, the Central Civil Services (Classification,

Control and Appeal) Rules, 1965 (hereinafter referred to as “CCS

CCA Rules, 1965”) also came to be amended by inserting a proviso

below sub-rule 2 of Rule 14 relating to treatment of the Complaint

Committee as Inquiring Authority. This was notified vide

Notification No. 11012/5/2001-Estt.A dated 01.07.2004

published in Gazette of India vide G.S.R. No. 225 dated

10.07.2004.

61. Sub-rule 2 of Rule 14 of the CCS CCA Rules, 1965 and the

proviso thereto is relevant and is therefore quoted as under:

41

“(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants(Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof.

Provided that where there is a complaint of sexual harassment within the meaning of rule 3 C of the Central Civil Services (Conduct) Rules, 1964, the Complaints Committee established in each Ministry or Department or Office for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules.”

62. In order to further clarify the role of the ICC in conducting

inquiry, the Government of India’s Ministry of Personnel, Public

Grievances and Pensions, Department of Personnel and Training

issued Office Memorandum being F No. 11013/2/2014-Estt (A-III)

dated 16.07.2015 (hereinafter referred to as “OM dated

16.07.2015”), after the POSH Act had come into force, with the

subject ‘Steps for conducting inquiry in case of allegation of Sexual

Harassment’, which is also of much relevance. The said OM lays

down the dual role of the ICC / Complaints Committee and

envisages a two-step inquiry into an allegation of sexual

42 harassment. Paragraphs 7 and 8 of the OM dated 16.07.2015

provide for the investigative role played by the ICC as follows:

“Need for investigation

7. The Complaints Committees may act on complaints of sexual harassment when they receive them directly or through administrative authorities etc, or when they take cognizance of the same suo-moto. As per Section 9(1) of the Act, the aggrieved woman or complainant is required to make a complaint within three months of the incident and in case there has been a series of incidents, three months of the last incident. The Complaints Committee may however extend the time limit for reasons to be recorded in writing, if it is satisfied that the circumstances were such which prevented the complainant from filing a complaint within the stipulated period.

8. As mentioned above, the complaints of sexual harassment are required to be handled by Complaints Committee. On receipt of a complaint, facts of the allegation are required to be verified. This is called preliminary enquiry/fact finding enquiry or investigation. The Complaints Committee conducts the investigation. They may then try to ascertain the truth of the allegations by collecting the documentary evidence as well as recording statements of any possible witnesses including the complainant. If it becomes necessary to issue a Charge Sheet, disciplinary authority relies on the investigation for drafting the imputations, as well as for evidence by which the charges are to be proved. Therefore this is a very important part of the investigation.”

63. Paragraphs 9, 10 and 11 of the OM dated 16.07.2015 clarify

the dual role of the ICC as follows:

“Dual Role

43

9. In the light of the Proviso to the Rule 14 (2) mentioned above, the Complaints Committee would normally be involved at two stages. The first stage is investigation already discussed in the preceding para. The second stage is when they act as Inquiring Authority. It is necessary that the two roles are clearly understood and the inquiry is conducted as far as practicable as per Rule 14 of CCS (CCA) Rules, 1965. Failure to observe the procedure may result in the inquiry getting vitiated.

10. As the Complaints Committees also act as Inquiring Authority in terms of Rule 14(2) mentioned above, care has to be taken that at the investigation stage that impartiality is maintained. Any failure on this account may invite allegations of bias when conducting the inquiry and may result in the inquiry getting vitiated. As per the instructions, when allegations of bias are received against an Inquiring Authority, such Inquiring Authority is required to stay the inquiry till the Disciplinary Authority takes a decision on the allegations of bias. Further, if allegations of bias are established against one member of the Committee on this basis, that Committee may not be allowed to conduct the inquiry.

11. In view of the above, the Complaints Committee when investigating the allegations should make recommendations on whether there is a prima facie substance in the allegations which calls for conducting a formal inquiry. They should avoid making any judgmental recommendations or expressing views which may be construed to have prejudiced their views while conducting such inquiry.”

64. After the fact-finding inquiry is conducted by the ICC,

paragraphs 12, 13 and 14 of the OM dated 16.07.2015 provide for

the power of the Disciplinary Authority to examine the report and

decide as to whether formal charge sheet needs to be issued or not,

44 and at which stage an inquiry is to be conducted. The said

paragraphs of the OM are quoted herein:

“Decision to issue Charge sheet, and conducting Inquiry

12. On receipt of the Investigation Report, the Disciplinary Authority should examine the report with a view to see as to whether a formal Charge Sheet needs to be issued to the Charged Officer. As per Rule 14(3), Charge Sheet is to be drawn by or on behalf of the Disciplinary Authority. In case the Disciplinary Authority decides on that course, the Charged Officer should be given an opportunity of replying to the Charge sheet. As per Rule 14(5), a decision on conducting the inquiry has to be taken after consideration of the reply of the charged officer.

13. If the Charged Officer admits the charges clearly and unconditionally, there will be no need for a formal inquiry against him and further action may be taken as per Rule 15 of the CCS(CCA) Rules.

The Inquiry-stages

14. In case the Charged Officer denies the charges and his reply is not convincing, the Charge sheet along with his reply may be sent to the Complaints Committee for formal inquiry, and documents mentioned in Rule 14 (6) will be forwarded to the Complaints Committee. As per Section 11(3) of the Act, for the purpose of making an inquiry, the Complaints Committee shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908when trying a suit in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents; and

(c) any other matter which may be prescribed.”

45

65. It is clear from OM dated 16.07.2015 of the Central

Government that in respect of Central Government employees,

inquiry into a complaint of sexual harassment is to be conducted

in two distinct stages. Firstly, the ICC is to conduct a fact-finding

inquiry or preliminary inquiry, investigating the veracity of the

complaint under the POSH Act. Thereafter, the report or

recommendation of the ICC is to be sent to the Disciplinary

Authority, which shall examine the report and decide as to whether

a formal chargesheet must be issued to ‘respondent’ / employee.

Upon issuance of such a formal chargesheet by the Disciplinary

Authority against the employee, comes the second stage, where the

ICC is required to act as the inquiring authority in the formal

disciplinary inquiry under the CCS CCA Rules, 1965 in order to

decide the disciplinary action which may or may not be imposed

upon the employee.

66. It goes without saying that the OM dated 16.07.2015 does

not specifically address the situation which has arisen in the

present case. However, under the scheme of the POSH Act and

particularly looking to Section 13 of the POSH Act, nothing

prevents the ICC constituted at the workplace of the aggrieved

woman from carrying out the preliminary / fact-finding inquiry at

46 the first stage. After completion of the fact-finding inquiry, the ICC

constituted at the workplace of the aggrieved woman can send its

recommendation and report to the employer of the ‘respondent’.

Upon receiving the findings and recommendations of the ICC

constituted at the aggrieved woman’s workplace, the employer of

the ‘respondent’ and the Disciplinary Authority, upon making a

decision that disciplinary proceedings are warranted, can then

issue a chargesheet to the ‘respondent’ and initiate disciplinary

proceedings against him. In this inquiry, the ICC constituted at the

workplace of the ‘respondent’ may conduct the second stage formal

inquiry, acting as the inquiring authority for the purpose of the

disciplinary proceedings. As such, the OM dated 16.07.2015, in

respect of employees of the Government of India treats inquiry into

complaints of sexual harassment as a two-stage process where

there is a preliminary / fact-finding inquiry at first and then a

disciplinary proceedings based on the findings of the preliminary

/ fact-finding inquiry.

67. Much emphasis has been laid by the learned Senior Counsel

appearing for the appellant on the fact that disciplinary action

cannot be taken against him on the basis of the recommendations

of an inquiry authority who is not from the same department.

47 However, any punishment which is to be imposed upon the errant

employee after completion of the disciplinary proceedings is to be

imposed by the ‘employer’ or disciplinary authority of the

‘respondent’, based upon the findings which come through in the

second-stage disciplinary proceedings. The fact that ultimately

disciplinary action against the ‘respondent’ has to be taken by his

employer and his department cannot be an impediment for the ICC

constituted at the workplace of the aggrieved woman to take up

the fact-finding inquiry under Section 11 of the POSH Act when

read with the OM dated 16.07.2015. In this context, particular

reference must be made to Section 13(3)(i) of the POSH Act quoted

above, which lays down that the ICC, upon reaching the

conclusion that the allegations against the ‘respondent’ are proved,

shall recommend to the employer to take disciplinary action for

sexual harassment as a misconduct in accordance with the

provisions of the service rules of the ‘respondent’.

68. In view of the findings as recorded above in respect of Issue

3, we find that the ICC proceedings instituted in the aggrieved

woman’s department can be considered the first-stage of inquiry

which carries out a preliminary / fact-finding inquiry, after which

the report of the ICC may be sent to the employer / department of

48 the ‘respondent’. Depending on the findings of the ICC (at the

aggrieved woman’s workplace) as the first stage, the ‘employer’ may

then take a decision to initiate disciplinary proceedings under the

applicable service rules and in such disciplinary proceedings, the

ICC constituted at the workplace of the ‘respondent’ shall be the

inquiring authority. While conducting the disciplinary proceedings

against the ‘respondent’, the ICC at the workplace of the

‘respondent’ shall have reference to the report of the fact-finding

inquiry by the ICC constituted at the workplace of the aggrieved

woman. Issue 3 is answered as such.

ISSUE IV

69. The present appeal originates out of the notice / order dated

13.06.2023 directing the appellant to appear before the ICC

constituted at the workplace of the aggrieved woman after

institution of proceedings and filing of complaint by the aggrieved

woman under Section 9 of the POSH Act. It is a challenge which

was brought by the appellant at a preliminary stage. While issuing

notice vide order dated 18.07.2023 in the present appeal, it was

directed by this Court that inquiry may continue but the final

outcome of the inquiry shall be kept in a sealed cover. As

mentioned above, we have been supplied with a copy of the report

49 of the ICC in sealed cover and we have perused the same. We are

not divulging any of the findings in the report, since it may form

the basis of a disciplinary proceedings against the appellant if the

same is initiated by his employer.

70. A concern was raised before us that since the appellant is an

employee of a different department, the ICC at the aggrieved

woman’s workplace will not be privy to details about the

employee’s scope of duty, work and service records, etc. However,

from a bare perusal of the report, we find that the ICC at the

aggrieved woman’s workplace has communicated with the

employer of the ‘respondent’, i.e., his Department and sought

information with respect to the incident and scope of duty of the

‘respondent’, which the Department has provided. The duty of the

employer to co-operate in the ICC proceedings is a statutory duty

of the employer, which it has duly complied with. Apart from this,

the ‘respondent’ has not been able to show that any prejudice has

been caused to him due to the proceedings being carried out by

the ICC constituted at the workplace of the aggrieved woman. In

any case, the right and remedy of the aggrieved woman to bring a

complaint under the POSH Act must be juxtaposed and balanced

with the sacrosanct right of the ‘respondent’ to be heard and for

50 application of mind before imposing of any punishment. As we

have held above, after the conduct of a fact-finding / preliminary

inquiry by the ICC constituted at the workplace of the aggrieved

woman under the POSH Act, its recommendations shall be sent to

the Department being the ‘employer’ of the ‘respondent’, at which

stage the employer will take a decision about initiation of

disciplinary proceedings under the provisions of the CCS CCA

Rules, 1965. We are also cognizant of the fact that there might be

administrative lethargy resulting in delay of the ICC proceedings if

the workplace of the ‘respondent’ fails to co-operate with the

factual inquiry being conducted by the ICC at the aggrieved

woman’s workplace, even though in the facts of this case, the

employer has duly complied with requests from the aggrieved

woman’s workplace. However, in that respect, it will suffice to say

that cooperating with the ICC in conduct of inquiry is a statutory

duty of the employer under Section 19(f) of the POSH Act, which

shall be complied with.

71. Since the report of the ICC at the workplace of the aggrieved

woman is in the nature of a fact-finding / preliminary inquiry,

which may form the basis of a subsequent disciplinary proceedings

against the appellant, we are restraining from making any

51 observations or remarks, so as to permit the appellant to raise all

contentions in the disciplinary proceedings except the question of

jurisdiction or validity of the proceedings by the ICC constituted at

the workplace of the aggrieved woman. As such, the Issue No. IV

is answered accordingly.

CONCLUSION

72. In the present case, considering the wide definition of the

word ‘workplace’ under the POSH Act, particularly as contained in

Section 2(o)(v), if we were to accept the contentions of the

appellant, the said interpretation would run contrary to the object

of the POSH Act and its intent as a social welfare legislation. In the

interest of clarity and easy comprehension, the following are our

conclusions in terms of the above discussion:

(i) The phrase ‘where the respondent is an employee’ as

contained in Section 11 of the POSH Act, cannot be

interpreted to mean that ICC proceedings against a

‘respondent’ may only be instituted before the ICC

constituted at the workplace of the ‘respondent’;

(ii) Such a restrictive interpretation of the POSH Act will run

contrary to the scheme of the Act, specifically in light of the

52 all-encompassing and wide definition which has been given

to the term ‘workplace’ in Section 2(o) of the POSH Act,

particularly in light of Section 2(o)(v) which expands the

scope of ‘workplace’ to include any place visited by the

employee ‘arising out of or during the course of

employment’;

(iii) Under Section 13 of the POSH Act, the recommendations

and report of the ICC are to be sent to the ‘employer’ which

shall then take a decision with respect to initiation of

disciplinary action. In light of the OM dated 16.07.2025,

the ICC has a dual-role – to conduct the preliminary / fact-

finding inquiry under the POSH Act and to act as the

inquiry authority in the formal disciplinary proceedings

under the CCS CCA Rules, 1965 as discussed, since

nothing prevents the ICC constituted at the Department of

the aggrieved woman from conducting the preliminary /

fact-finding inquiry and upon receiving the report of the

said ICC, if the employer initiates disciplinary proceedings,

the ICC constituted at the Department of the ‘respondent’

shall act as the inquiry authority in the disciplinary

proceedings.

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(iv) In case the ICC constituted at the aggrieved woman’s

workplace is conducting a fact-finding inquiry under the

POSH Act, the employer of the ‘respondent’, even if it is a

different department, must abide its duties under Section

19(f) of the POSH Act to swiftly cooperate and make

available information upon a request by the ICC of the

aggrieved woman’s workplace.

73. In light of the above conclusions and the answers to the

issues as framed, the present appeal is dismissed. The report of

the ICC constituted at the aggrieved woman’s workplace shall be

transmitted to the Department of the appellant forthwith, which

shall take further action as necessary under the POSH Act

following the procedure as prescribed in the relevant service rules.

74. All pending applications shall stand disposed of.

….…………….…………J. (J.K. MAHESHWARI)

…………………………..J. (VIJAY BISHNOI)

New Delhi;

December 10, 2025.

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