No Enabling Provision Under POSH Act To Prefer An Appeal To A Departmental Authority: Madhya Pradesh High Court

Madhya Pradesh High Court has recently underscored that once a report has been prepared by the Internal Complaints Committee constituted under the Prevention of Sexual Harassment At Work Place Act, 2013 (POSH Act), no further appeal lies to a Departmental Authority.

The single judge bench of Justice Sujoy Paul also remarked that Section 18 of the POSH Act expressly provides that appeals would only lie to a court or a tribunal.

The bench of High Court sitting at Jabalpur also noted that the report of the local/internal committee comes within the ambit of a ‘service matter’ as laid down in Ramesh Pal v. Union of India & Ors (2014). It was also held in the said case that the appropriate recourse would be approaching the court or tribunal as per the service matters.

“…. Thus, there exists no provision of preferring appeal under the Act of 2013 to a departmental authority. In absence of showing any enabling provision, this Court is unable to countenance the order of Police Headquarter dated 25/06/2018 (Annexure R/1). This is trite that if a statute, prescribes a thing to be done in a particular manner, it has to be done in the same manner and other methods are forbidden”, Justice Sujoy Paul stated in the order.

The petitioner challenged the direction issued by the Police Headquarters on 25.06.2018 and the second enquiry report prepared by the Departmental Authority (ADGP) dated 25.07.2018 pursuant to such order.

The petitioner was the Station House Officer (SHO) of Gadarwara Police Station during the time of the alleged incident of sexual harassment. The complainant was working as Sub Inspector under the supervision of SHO at that point of time.

The version of the petitioner is that he had taken coercive action against the Sub Inspector for dereliction of duty. The sexual harassment complaint filed by the officer is only an afterthought, SHO argued.

After the complaint was filed on 16.03.2017, a five-member committee conducted the enquiry and filed a report on 26.05.2017 which adjudged the petitioner as not guilty of sexual harassment. Later, a second enquiry report was prepared on 25.07.2018 as per the direction of the Police Headquarters, wherein the petitioner was found guilty of the allegations levelled against him.

While allowing the writ petition and setting aside the impugned direction of the Police Headquarters as well as the second enquiry report, the court also noted as below:

“In the instant case, in absence of showing any source of power for issuing direction dated 25/06/2018 (Annexure R/1), the said order and consequential enquiry report dated 25/07/2018 (Annexure P/1) cannot sustain judicial scrutiny.”

The single-judge bench also observed that there is no material evidence available against the petitioner.

Additionally, the court also took note of the fact that the complaint was filed well after the period of three months from the date of the incident. The local/internal committee has not recorded any reasons in writing regarding the extension of time limit as mandated in the proviso to Section 9 of the POSH Act.

“Even assuming that this Inquiry Officer had authority to conduct the enquiry and prepare report dated 25.07.2018, her finding is based on surmises and conjecture and not on any evidence on record. Suspicion, however strong it may be, cannot take the place of proof [See: AIR 1964 SC 364 (Union of India v. H.C. Goel)….”, the court accordingly concluded.

Case Title: Mukesh Khampariya v. The State Of Madhya Pradesh Thr. Its Secretary Department Of Home Ministry & Ors.

Case No: Writ Petition No. 21852 Of 2018

Citation: 2023 LiveLaw (MP)

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