C/SCA/3285/2026 JUDGMENT DATED: 16/04/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 3285 of 2026

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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Approved for Reporting Yes No

Yes

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ASHIMA SANJEEV MINOCHA

Versus

GUJARAT CO-OPERATIVE MILK MARKETING FEDERATION LIMITED &

ANR.

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Appearance:

IG JOSHI(8726) for the Petitioner(s) No. 1

MR KEYUR GANDHI WITH MR NIRAV JOSHI WITH MR NISARG DESAI

WITH MS PRAVALIKHA BATTHINI FOR GANDHI LAW

ASSOCIATES(12275) for the Respondent(s) No. 1,2

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CORAM:HONOURABLE MR. JUSTICE HEMANT M.

PRACHCHHAK

Date : 16/04/2026

JUDGMENT

1.Rule returnable forthwith. Learned counsel Mr. Keyur Gandhi,

appearing on behalf of Gandhi Law Associates, waives service of

notice of Rule for and on behalf of the respondents.

2.With the consent of the learned counsel appearing for the

respective parties, the petition has been taken up for final hearing

today.

3.By way of present petition under Article 226 of the Constitution

of India read with the provisions of Sexual Harassment of Women at

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Workplace (Prevention, Prohibition and Redressal) Act, 2013

(hereinafter be referred to as “the POSH Act”), petitioner has prayed

for the following reliefs :

“A. This Hon’ble Court may be pleased to issue a writ of certiorari, order or

direction in the nature of certiorari or any other writ, order or direction

quashing and setting aside the Final Report dated 25.09.2025 (Annexure U)

issued by Respondent No. 2 – Internal Complaints Committee; and

B. This Hon’ble Court may be pleased to issue a writ of mandamus, order or

direction in the nature of mandamus or any other writ, order or direction

directing Respondent No. 1 to comply with the order dated 19.01.2026

(Annexure V) passed by the State Human Rights Commission and constitute

a fresh, neutral, and independent Internal Complaints Committee excluding

members subordinate to Respondent No. 2, and direct a de novo inquiry

into the Petitioner’s complaint under the supervision of a retired judicial

officer or such independent authority as this Hon’ble Court deems fit;

BB. Pending hearing and disposal of the petition, this Hon’ble Court may be

pleased to direct the Respondents to forward the Final Report dated

25.09.2025 to the Superintendent of Police, Anand for inquiring into the

observations made at Para 22 of the Final Report by Respondent No. 2, vis-

a-vis, forcefully taking the phone from Petitioner’s hand and further

consider the case of the Petitioner for compensation as deemed appropriate

by this Hon’ble Court;

C. For costs; and

D. Such other and further reliefs as may be considered fit and expedient in

the facts of the present case be granted.”

4.Brief facts giving rise to the present petition are that, the

petitioner completed her Bachelor of Commerce in the year 2016 and

thereafter obtained a Master of Business Administration in Rural

Management from the Institute of Rural Management, Anand in the

year 2018. That, upon successfully clearing the recruitment process

conducted through her college, the petitioner appeared for and

cleared the interview process and was appointed as Senior Executive

(Sales) on 18.04.2018 with respondent No. 1 and thereafter, upon

successful completion of her probationary period with respondent

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Society, her services were duly confirmed. That, in recognition of her

performance and services, the petitioner was promoted to the post of

Assistant Manager (Marketing) on 29.10.2021 and had been

discharging her duties as an Assistant Manager with respondent No. 1

since then without any complaints from the management.

4.1It is the case of the petitioner that, on 28.05.2025, the

Petitioner was subjected to physical and verbal assault by one Mr.

Jayen Mehta and Ms. Shefali Vijaywargiya at around 07:30 pm. That,

both Mr. Mehta and Ms. Vijaywargiya forcibly snatched the petitioner's

mobile phone from her hand and confiscated the same and therefore,

the petitioner submitted a written complaint addressed to the

Chairman, the Vice Chairman, the Chief General Manager and the

Head of the Women Grievance Cell of respondent No. 1 on 29.05.2025

at 01:30 am. That, subsequent to filing of the aforesaid complaint, the

petitioner's official email account and employee portal user ID were

blocked, thereby disabling her access to the same. That, upon

experiencing dizziness and an episode of vomiting arising out of the

injuries sustained in the aforesaid incident, the petitioner contacted a

friend who took her to the hospital for medical examination. That,

upon examination, the attending doctor advised her to lodge a

criminal complaint in view of the visible bruises on her arms, however,

owing to apprehension of adverse consequences from the private

respondents, the petitioner expressed her unwillingness to initiate

criminal proceedings at that time. That, in absence of such

willingness, the doctor declined to record the bruise marks in the

medical certificate and consequently, no criminal complaint was

lodged at the relevant time.

4.2It is the case of the petitioner that, the petitioner received a

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summons dated 29.05.2025 at about 1:45 p.m., calling upon her to

remain present before the Local Crime Branch Police Station, Anand

(hereinafter referred to as the "LCB"). That, upon perusal of the

summons, the petitioner came to know that the same had been

issued pursuant to a purported complaint lodged by Mr. Jayen Mehta,

of which she had no prior knowledge. That parallelly, the petitioner

reduced into writing her detailed account of the incident that occurred

at the Head Office and forwarded the same to the Local Crime Branch,

Anand, requesting registration of an FIR on 29.05.2025. That, on

31.05.2025, the petitioner was called to the LCB for the purpose of

recording her statement in connection with her complaint, however,

upon reaching the police station, she was informed that a complaint

had been lodged against her by Mr. Jayen Mehta and was directed to

sign a pre-prepared confession statement allegedly admitting to the

offence imputed to her. That, the petitioner refused to sign the said

statement and requested a copy of the complaint, as she had no

knowledge of the nature of the allegations made against her.

Thereafter, the petitioner was made to remain seated at the police

station for approximately 6 hours and was repeatedly threatened that

she would not be permitted to leave unless she signed the purported

confession statement. That, in view of the inaction on the part of the

police authorities, she addressed a complaint dated 04.06.2025 to the

Inspector General of Police, Ahmedabad Range, seeking registration

of an FIR and initiation of a proper investigation into the incident

dated 28.05.2025. That, the petitioner also submitted a complaint

dated 04.06.2025 before the State Human Rights Commission,

bringing to its notice the acts of harassment and misconduct allegedly

committed by the officials of the LCB, Anand.

4.3That, on 11.06.2025, the petitioner addressed a letter to the

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Human Resource Department, with copies marked to the Head of the

Internal Complaints Committee/POSH Committee (hereinafter referred

to as the "ICC/POSH Committee"), Chief General Manager, the

Chairman, the District Magistrate and the District Collector,

requesting the constitution of a Committee under the provisions of

the Sexual Harassment of Women at Workplace (Prevention,

Prohibition and Redressal) Act, 2013 (hereinafter referred to as the

"POSH Act") to inquire into her complaint against Mr. Jayen Mehta and

Ms. Shefali Vijaywargiya. That, simultaneously, Ms. Shefali

Vijaywargiya lodged a complaint dated 03.06.2025 (received on

09.06.2025) before the ICC against the Petitioner and certain

unknown persons alleging that, on 27.05.2025 she came to know that

certain letters / patrika were being circulated containing defamatory

allegations along with her photographs, insinuating an illicit

relationship between her and Mr. Mehta. It was alleged that such

circulation had outraged her modesty and caused serious harm to her

reputation and she caught the petitioner red-handed taking her

photographs on her mobile on 28.05.2025. That, the intimation

regarding the filing of the aforesaid complaint was conveyed to the

petitioner by the ICC vide email dated 16.07.2025.

4.4That, on 19.06.2025, the petitioner received a letter from

respondent No. 1 directing the petitioner to collect her mobile phone

from the Administration Department, which had been allegedly

handed over to the police officials on 28.05.2025 on the allegation

that it was used as an instrument for spying. That, the said letter was

slid under the door of the company quarters of the petitioner and, as

she was not present at the quarters at the relevant time, she

remained unaware of the communication. That, upon returning to the

quarters and becoming aware of the same, the petitioner addressed a

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reply dated 26.06.2025 stating that the allegation that she had used

her mobile phone for spying was false and that she would not collect

or acknowledge receipt of the mobile phone unless the same was

handed over to her without any such imputations. That, as the

aforesaid reply was not accepted by the respondent Society, the

petitioner addressed an email dated 27.06.2025 reiterating the

contents of her earlier communication and requesting that her official

email account and employee portal user ID be unblocked forthwith.

That, on 19.07.2025, Mr. Jayen Mehta and Ms. Shefali Vijaywargiya

submitted their respective replies before the ICC in response to the

complaint filed by the petitioner. That, on 30.07.2025, the petitioner

submitted her reply before the ICC in respect of the complaint filed by

Ms. Shefali Vijaywargiya. That, on 02.09.2025, a hearing was

conducted by the ICC, wherein both the petitioner and Ms. Shefali

Vijaywargiya were specifically asked whether they were willing to

explore conciliation in terms of Section 10 of the POSH Act; however,

both parties declined the said option. During the proceedings, the

petitioner was also shown CCTV footage of the original incident dated

28.05.2025 and was subjected to inappropriate and insinuating

questions, thereby shifting blame upon her despite being the

aggrieved party. That, the petitioner requested a copy of the said

CCTV footage; however, the same was denied to her on the ground

that furnishing such footage would be contrary to Section 16 of the

POSH Act.

4.5That, on 06.09.2025, the petitioner received a letter from

respondent No. 1, thereby providing details of the members of the

ICC, which was sent pursuant to the direction of the Human Rights

Commission and upon perusal of the same, it is evident that majority

members of the ICC were direct subordinates of respondent No. 2,

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who is the Managing Director. That, on 09.09.2025, the petitioner

submitted her written submissions in respect of the CCTV footage

shown to her during the hearing dated 02.09.2025, placing on record

material facts and clarifications which, were not duly considered.

That, in the said communication, the petitioner raised a categorical

objection regarding the constitution and functioning of the ICC, on the

ground that its members were direct subordinates of the Managing

Director, against whom her complaint had been made, thereby

vitiating the proceedings and offending the principles of natural

justice and a fair hearing. Furthermore, the petitioner had vide email

dated 26.09.2025 again raised the aforesaid objection with regard to

the members of the ICC, but to no avail. That, on 29.09.2025, the

petitioner was provided with a copy of the impugned Final Report of

the ICC dated 25.09.2025 concluding that, the complaint of the

petitioner is false and baseless and disciplinary action must be taken

against the petitioner, however, the Final Report in respect of the

complaint filed by Ms. Shefali Vijaywargiya concluded that the

allegations made therein require some consideration and the said

complaint was forwarded to the police authorities for initiating

appropriate action. That, the impugned Final Report proceeds largely

on the basis of its own interpretation of the CCTV footage and arrives

at a conclusion regarding the absence of any "sexual undertone",

while failing to apply the statutory test of "unwelcome physical

contact" as contemplated under the Act. Moreover, the findings

recorded therein as to whether the allegations made in the respective

complaints of the petitioner and Ms. Shefali Vijaywargiya fall within

the ambit of "sexual harassment" as defined under Section 2(n) of the

POSH Act, 2013, are inconsistent and mutually contradictory. That,

the State Human Rights Commission, by order dated 19.01.2026,

directed the Chairman of respondent No. 1 to constitute a neutral

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Committee to inquire into the complaint of the petitioner. That, the

petitioner was served with a termination letter dated 11.02.2026,

whereby her services were terminated with immediate effect.

5.Being aggrieved and dissatisfied with the impugned Final

Report dated 25.09.2025, the petitioner has preferred this petition.

6.Heard Mr. I.G. Joshi, learned counsel appearing for the

petitioner and learned counsel Mr. Keyur Gandhi, assisted by Mr. Nirav

Joshi, Mr. Nisarg Desai and Ms. Pravalikha Batthini, learned counsels

appearing on behalf of Gandhi Law Associates, for the respondents.

SUBMISSIONS OF THE PETITIONER

7.Learned counsel Mr. Joshi for the petitioner has submitted that

the ICC proceedings were vitiated by a real and reasonable

apprehension of bias as all of the ICC members, except one, were

direct subordinates of the Managing Director, against whom the

complaint was filed and the composition of such a committee creates

an institutional conflict of interest and violates the principle of nemo

judex in causa sua. He has submitted that despite specific objections

raised by the petitioner and the State Human Rights Commission's

order dated 19.01.2026 directing constitution of a neutral committee,

respondent No. 1 proceeded with the same ICC and acted upon its

report evidencing institutional bias and therefore, failure to

reconstitute a neutral committee renders the proceedings non-est in

law and without jurisdiction. He has submitted that the ICC has

committed an error in holding that absence of "sexual undertones"

negates sexual harassment as contemplated under Section 2(n) of the

POSH Act, which includes physical contact and advances and other

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unwelcome conduct of sexual nature. He has submitted that the

impugned Final Report itself records that Mr. Jayen Mehta held the

petitioner's wrist and that a physical scuffle ensued for the purpose of

snatching her personal mobile phone and therefore, the ICC's

reasoning that such conduct is legally permissible if not accompanied

by "sexual intent" is contrary to the plain language of the statute. He

has submitted that the ICC has selectively relied upon CCTV footage

and absence of corroborative witness testimony to label the

petitioner's complaint as "false and baseless," while simultaneously

accepting and acting upon collateral, anonymous and untested

material (the patrikas/letters) and the counter-complaint of Ms.

Shefali Vijaywargiya. He has submitted that the Final Report admits

that physical contact occurred but proceeds to dilute its seriousness

by speculating that Mr. Jayen Mehta acted on instinct or suspicion and

the ICC has effectively justified the use of force by a superior officer

on the basis of unverified suspicion, which is perverse and contrary to

settled principles governing appreciation of evidence. He has further

submitted that the ICC has failed to adequately consider that the

witnesses examined were employees subordinate to Mr. Jayen Mehta,

thereby compromising the independence of their testimony.

7.1Learned counsel Mr. Joshi has submitted that the ICC has relied

upon anonymous patrikas, police communications and third-party

material to discredit the petitioner without testing their authenticity,

authorship, or chain of custody and such material, if relied upon,

ought to have been subjected to proper evidentiary scrutiny and thus,

the use of unverified defamatory material to undermine the credibility

of the complainant violates the principles of fairness and

reasonableness under Article 14 of the Constitution of India. He has

submitted that the impugned Final Report applies a restrictive and

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hyper-technical interpretation of Section 2(n) to the petitioner's

complaint while simultaneously treating the complaint of Ms.

Vijaywargiya as falling within the ambit of the POSH Act. He has

submitted that while dismissing the petitioner's complaint on the

ground that there was no "sexual intent", the ICC admitted and acted

upon Ms. Shefali Vijaywargiya's complaint which alleged that

defamatory letters and photographs "outraged modesty" and thus,

the ICC's approach is inconsistent and mutually contradictory and the

Final Report thus, discriminates between two complaints arising from

the same factual matrix and applies different legal standards, thereby

violating Article 14 of the Constitution of India. He has submitted that

even assuming that the ICC has not find overt sexual intent, but it has

still failed to consider that the conduct of Mr. Jayen Mehta falls

squarely within Section 3(2) of the POSH Act and thus, the physical

force used by a high-ranking Managing Director against a junior

female employee, resulting in medical distress and intimidation,

created an "intimidating, hostile or offensive work environment" and

interfered with her work and employment security, however, the ICC

has failed to examine whether the conduct amounted to implicit

threat, humiliation, or interference with employment status, all of

which are statutorily recognized consequences under Section 3(2) of

the POSH Act. He has submitted that the ICC has failed to consider the

medical report of the petitioner following the incident, which recorded

symptoms of physical distress and visible bruising and therefore, the

absence of visible injury on CCTV footage does not negate the

occurrence of unwelcome physical force, however, the ICC has neither

reconciled the medical report with its findings nor provided reasons

for discounting such contemporaneous evidence and thus, the

findings recorded by the ICC are perverse and based on incomplete

evaluation of material evidence.

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7.2Learned counsel Mr. Joshi has submitted that subsequent to the

incident and filing of the complaint, the petitioner's official email and

access credentials were blocked, she was subjected to police

pressure, and ultimately her services were terminated, inter alia,

based upon the impugned Final Report and therefore, such acts

constitute victimization and punitive retaliation for invoking the POSH

mechanism and are contrary to the statutory duty of the employer

under Section 19 of the POSH Act. He has submitted that the

respondent No. 1 deliberately failed to implement the order dated

19.01.2026 passed by the State Human Rights Commission directing

constitution of a neutral committee and instead of that, they had

proceeded to act upon the impugned Final Report and terminated the

services of the petitioner and thus, the refusal to comply with a

direction aimed at ensuring fairness demonstrates mala fide intent to

shield a high-ranking official and to penalize the complainant.

7.3In support of his submissions, learned counsel Mr. Joshi has

referred and relied upon the following decisions of the Hon'ble Apex

Court as well as this Court :

[I] Shridhar C. Shetty (Deceased) Through Legal

Representatives vs. Additional collector and Competent

Authority and Others, [2020] 9 SCC 537;

[II] Medha Kotwal Lele and Others vs. Union of India and

Others, [2013] 1 SCC 297;

[III] Anand Khakhar & Ors. vs. Khushbu Pathan & Anr.,

SCA/15519/2024;

[IV] Modex Trading Private Limited vs. Ashish Ashokkumar

Goswami & Ors., LPA/579/2025;

[V] S. Ravi Selvan vs. Central Board of Indirect Taxes &

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Customs, [2022] SCC OnLine Mad 9913.

8.Per contra, learned counsel Mr. Keyur Gandhi, appearing on

behalf of the respondents, has vehemently objected the present

petition and submitted that the present petition filed by the petitioner

challenging the Final Report dated 25.09.2025 issued by the Internal

Complaints Committee ["ICC"] under the POSH Act is not maintainable

and deserves to be dismissed in limine only on this ground. He has

submitted that the petitioner had filed a Complaint vide e-mail dated

29.05.2025 to the Chairman, Gujarat Co-operative Milk Marketing

Federation ["GCMMF"] complaining about sexual harassment by Mr.

Jayen Mehta - Managing Director of the respondent No. 1 and Ms.

Shefali Vijaywargiya - Deputy Manager, Marketing Department of the

respondent No. 1, which came to be numbered as Case No. 1 of 2025

- Complaint of Ms. Ashima Minocha and subsequently, on 03.06.2025,

the respondent No. 2- ICC received a separate complaint from Ms.

Shefali Vijaywargiya, in which she complained against the petitioner

and other unknown people who have outraged her modesty and

defamed her by circulating anonymous letters containing false

narratives, which was registered as Case No. 2 of 2025. He has

submitted that the respondent No. 2 - ICC, after considering both the

complaints, has issued the Impugned Report. He has submitted that

the respondent No. 2 - ICC, in Case No. 1 of 2025 of the petitioner has

concluded that the petitioner has made an allegation of sexual

harassment against Mr. Jayen Mehta - Managing Director of the

respondent No. 1 and Ms. Shefali Vijaywargiya Deputy Manager,

Marketing Department, knowing the same to be false and incorrect.

He has submitted that the Committee has also observed that the

petitioner consciously concealed material facts from the Committee

and did not give true narration of the entire episode that unfolded on

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the 28.05.2025. He has submitted that the ICC has also observed that

the statements made by the petitioner are false and misleading in

nature and therefore, as per Section 14 of the POSH Act, the ICC

members unanimously rejected petitioner's complaint and advised

the Administration Department of the respondent No. 1 to take

suitable disciplinary action against the petitioner in accordance with

the provisions of the service rules applicable. He has submitted that in

Case No. 2 of 2025 - Complaint of Ms. Shefali Vijajwargiva, the

respondent No. 2 - ICC has concluded that the circulation of

anonymous letters/patrikas are serious and cognizable offence and

Ms. Shefali Vijajwargiya was subjected to character assault through

the defamatory letters/patrikas circulated with her photographs. He

has submitted that it was also observed that the interim police

investigation report suggests involvement of the petitioner as the

photos of Ms. Shefali Vijajwargiya, circulated in the letters/patrikas

were found in her mobile device. He has submitted that the

respondent No. 2 - ICC, relying on Section 11 (1) of the POSH Act,

decided to admit the complaint made by Ms. Shefali Vijajwargiya

dated 03.06.2025 and directed the Complaint to be forwarded to the

police for detailed investigation and take appropriate action as per the

law against all involved. He has submitted that the respondent No. 2 -

ICC also recommended the Administration department of GCMMF to

take appropriate disciplinary action as per the rules.

8.1Learned counsel Mr. Gandhi has submitted that the petition will

not be maintainable on two counts viz., (1) respondent No. 1 is not a

'State' under Article 12 of the Constitution of India in accordance with

settled legal position as derived from various settled case-laws on the

issue; and (2) In any event, the petitioner has an alternative remedy

to file an Appeal before the appellate forum available under the

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provisions of POSH Act and Rules, and further, (3) Without prejudice

to the above contentions, the alleged act does not fall within the

definition of 'sexual harassment' as defined under Section 2(n) of the

POSH Act. He has submitted that the petitioner has an alternative

remedy to file an Appeal under the POSH Act and Rules and therefore,

an Appeal is required to be filed under Section 18 of the POSH Act

within 90 days of the Committee Recommendations i.e., Report before

the Appellate Authority notified under Section 2(a) of the Industrial

Employment (Standing Orders) Act, 1946. He has submitted that in

the facts of the present case, the ICC report is dated 25.09.2025 and

hence, the prescribed period of limitation to file an Appeal before the

Appellate Authority is also over. He has submitted that instead of

filing an Appeal, the petitioner has filed the captioned petition which

is not maintainable in view of availability of the aforesaid alternative

remedy. He has submitted that as per the settled legal position, writ

jurisdiction can be exercised in case of alternative remedies only in

three contingencies i.e. (1) Enforcement of Fundamental Rights, (2)

When there is failure of natural justice; and (3) Orders or proceedings

are wholly without jurisdiction or varies of the fact is challenged,

however, in the present case, no any fundamental rights of the

present petitioner has been violated by the respondents and the

petitioner has been provided that sufficient opportunity of hearing

and hence, there is no violation of principles of natural justice. He has

further submitted that the petitioner has not pleaded any of the above

contingencies in the petition for this Court to exercise Writ Jurisdiction

and therefore, no contingencies exit for exercising Writ Jurisdiction by

this Court to interfere with the Report dated 25.09.2025, hence, the

captioned petition filed by the petitioner is not maintainable and the

petitioner may be directed to avail appropriate remedy of appeal

under the POSH Act and Rules. He has submitted that it is a settled

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legal position that Appeal under Section 18 of the POSH Act is an

efficacious alternative remedy to challenge recommendations / report

of the ICC and therefore, no writ petition can lie against the

recommendations / report of the ICC and it has also been held by

Courts that the Court should refrain from exercising writ jurisdiction in

view of availability of alternative remedy of Appeal under POSH Act.

He has further submitted that from bare perusal of Section 18, it is

amply clear that where the service rules applicable to the person

concerned do not provide a forum for preferring an Appeal in respect

of matters mentioned therein, the Appeal has to be preferred in the

manner prescribed under the POSH Act and hence, the present

petition deserves to be dismissed on this ground.

8.2Learned counsel Mr. Gandhi has submitted that the respondent

No. 1 is registered on 09.07.1973 by the Joint Registrar of Co-

operative Societies (Sugar) Gujarat and therefore, the present petition

is not maintainable as the respondent No. 1 - Gujarat Co-operative

Milk Marketing Federation Limited (GCMMF) does not fall within the

ambit of 'State' or the 'Other Authorities' as defined under Article 12

of the Constitution of India, as the respondent No. 1 is a co-operative

society registered under Section 10 of the provisions of the Gujarat

Co-operative Societies Act, 1961 and as per the settled legal position,

a co-operative society is not ipso facto 'State' under Article 12 of the

Constitution of India. He has submitted that the as per Article 12 of

the Constitution the 'State' includes 'all local and other authorities

within the territory of India or under the control of the Government of

India'. He has further submitted that it is also a settled legal position

that an entity to be an 'Authority' under Article 12, it must be

financially, functionally and administratively dominated by or under

the control of the State and it has been consistently held that an

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entity will not be a 'State', if there is no financial dependence on

State, absence of administrative domination and the functions are not

essential governmental functions. He has submitted that it has been

further held by the Courts that a writ petition under Article 226 of the

Constitution would be maintainable against (i) the Government; (ii) an

authority; (iii) a statutory body; (iv) an instrumentality or agency of

state; (vi) a private body run substantially on State funding; (vii) a

private body discharging public duty or positive obligation of public

nature; and (viii) a person or body under liability to discharge any

function under any statute, to compel it to perform such a statutory

function and the Courts have further laid down twin tests for

maintainability of the writ viz., (1) the person or authority is

discharging public duty / public functions; (2) Their action under

challenge falls in domain of public law and not under common law,

and merely because a writ petition can be maintained against the

private individual / establishment discharging the public duties and/or

public function, the same should not be entertained if the

enforcement is sought to be secured under the realm of a private law

and thus, the right which purely originates from a private law cannot

be enforced taking aid of the writ jurisdiction irrespective of the fact

that such institution is discharging the public duties and/or public

functions.

8.3So far as the submissions with regard to the fact that the

respondent No.1 is not a ‘State’ under Article 12 of the Constitution of

India is concerned, learned counsel Mr. Gandhi has referred and relied

upon the following decisions of the Hon’ble Apex Court as well as this

Court :

[I] Managing Director, Kaira Co-operative Milk Producers vs.

Union Limited, Letters Patent Appeal No. 59 of 1984 in Special

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Civil Application No. 855 of 1983 (para-2);

[II] Bipinchandra Jugaldas Soni, Madhusudan Manikant Vedant

vs. Gujarat State Co-operative Cotton Federation, [1984] Law

Suit (Guj) 209 (para-4);

[III] Pradeep Kumar Biswas vs. Indian Institute of Chemical

Biology and Others, [2002] 5 SCC 11 (Para-40);

[IV] Thalappalam Service Co-op. Bank Limited vs. State of

Kerala and Others, [2013] 6 SCC 82 (Paras-17, 18, 20, 32, 38,

46);

[V] K.K. Saksena vs. International Commission on Irrigation

and Drainage and Others, [2015] 4 SCC 670 (Paras-46 to 49);

[VI] Hema Ritesh Thakker and Others vs. State of Gujarat and

Others, [2016] LawSuit (Guj) 1306 (Paras-31, 38, 39, 44);

[VII] St. Mary’s Education Society vs. Rajendra Prasad

Bhargav, [2022] 4 SCT 94 (Para-68);

[VIII] Jignesh Sureshbhai Shah vs. State of Gujarat and Others,

[2024] LawSuit (Guj) 1490 (Paras-6 to 8);

[IX] Army Welfare Education Society, New Delhi vs. Sunil

Kumar Sharma and Others, [2024] SCC OnLine 1683 (Paras-41,

42);

[X] Vaneeta Patnaik vs. Nirmal Kanti Chakrabati and Others,

[2025] LawSuit (SC) 1248 (Paras-14, 24 to 27, 31, 32);

8.4So far as the statutory alternative remedy available to the

petitioner to file an Appeal under the POSH Act read with Rules is

concerned, learned counsel Mr. Gandhi has referred and relied upon

the following decisions of the Hon’ble Apex Court as well as different

Courts of India :

[XI] Suresh Babu vs. Regional Joint Labour Commissioner,

Ernakulam and Others, [2017] LawSuit (Ker) 2230 (Para-2);

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[XII] ABC vs. Internal complaints Committee and Others,

[2025] SCC OnLine Bom 4192 (Paras-25 to 29, 33, 34, 39, 43

to 46);

[XIII] Radha Krishnan Industries vs. Himachal Pradesh and

Others, [2021] 6 SCC 771 (Paras-24 to 27); and

8.5So far as the contention with regard to the fact that the alleged

act does not fall under the definition of ‘Sexual Harassment’ under

Section 2(n) of the POSH Act is concerned, learned counsel Mr. Gandhi

has referred and relied upon the decision of the Madras High Court

rendered in case of D.S. Radhika vs. Secretary to Government,

Health, Medical and Family Welfare Department, [2023]

LawSuit (Mad) 674 (Para-5).

8.6Thus, considering the principles laid down by the Hon'ble

Supreme Court as well as different Courts and in view of the

submissions advanced hereinabove and particularly in view of the

present preliminary objections regarding the maintainability of the

petition, learned counsel Mr. Gandhi has urged that the petitioner is

not entitled to any of the reliefs sought for in the captioned petition

and therefore, the present petition be dismissed and no interference

is required to be called for in the impugned Final Report of the ICC.

9.Referring to the affidavit-in-rejoinder filed on behalf of the

petitioner, learned counsel Mr. I.G. Joshi has submitted that no

alternative, much less efficacious remedy is available to the petitioner

under the POSH Act, as Section 18 of the POSH Act provides for an

appeal against the recommendations / report of the ICC before a

"Court" or "Tribunal" in accordance with the applicable service rules

and in absence of such service rules, the appeal is to be preferred "in

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such manner as may be prescribed", i.e., under Rule 11 of the POSH

Rules. He has submitted that Rule 11 contemplates an appeal before

an appellate authority notified under Section 2(a) of the Industrial

Employment (Standing Orders) Act, 1946 and in the State of Gujarat,

such appellate authority is stated to be the Industrial Court,

Ahmedabad, however, the Industrial Court derives its jurisdiction from

the Gujarat Industrial Relations Act, 1946 and is confined strictly to

powers conferred under the said statute, more particularly under

Section 87(x) of the said Act and there is no notification or statutory

conferment empowering the Industrial Court to adjudicate appeals

under Section 18 of the POSH Act and in absence of such conferment,

the Industrial Court cannot assume jurisdiction beyond its statutory

mandate. In support of his submissions, he has referred and relied

upon the decision of the Hon'ble Supreme Court rendered in case of

Shridhar C. Shetty (Supra).

9.1Learned counsel Mr. Joshi has submitted that appeals

purportedly filed under the POSH Act before the learned Industrial

Court are not traceable to any provision under the POSH Act itself, but

are instead based on a notification dated 31.12.1979, under which

employer institutions and/or complainants have approached the

learned Industrial Court by invoking the framework of the Industrial

Employment (Standing Orders) Act, 1946, however, in absence of any

subsequent notification issued by the State Government, and in the

absence of any Appellate Authority constituted under the POSH Act by

respondent No. 1, no statutory forum is in fact available to the

petitioner. He has submitted that the Industrial Court, being a

statutory authority constituted under the Gujarat Industrial Relations

Act, 1946 cannot exercise jurisdiction beyond what is expressly

conferred upon it under the said State legislation, nor can it

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adjudicate disputes arising under a Central legislation of nationwide

applicability, in the absence of a specific conferment of jurisdiction.

He has submitted that even assuming that the learned Industrial

Court could entertain an appeal under the POSH Act, it would, in the

absence of a specific Government notification or express conferment

of jurisdiction, be unable to adjudicate such proceedings. He has

submitted that the jurisdiction of the Industrial Court is confined to

matters arising out of the interpretation and application of standing

orders under the Industrial Employment (Standing Orders) Act, 1946,

and in the absence of certified standing orders applicable to the

present case, it would lack the jurisdiction to entertain such an

appeal. He has submitted that the aforesaid position is further

reinforced by Section 18 of the POSH Act itself, which provides that an

appeal shall lie before a court or tribunal in accordance with the

service rules applicable to the aggrieved person, however, in the

present case, no such forum is available under the applicable service

framework. He has submitted that even if this Court does not accept

the aforesaid submissions, the petitioner would still be left with no

efficacious remedy except to invoke the jurisdiction of this Court for

enforcement of fundamental rights. He has submitted that upon the

implementation of the Industrial Relations Code, 2020, the Industrial

Employment (Standing Orders) Act, 1946 stands repealed with effect

from 21.11.2025 and consequently, any notification issued under the

repealed enactment would also cease to have effect, thereby

extinguishing even the purported appellate forum relied upon by

respondent No. 1, and under such circumstances, the petitioner has

no alternative but to approach this Court.

9.2 Learned counsel Mr. Joshi has submitted that while the

exceptions carved out by the Hon'ble Supreme Court and this Court

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regarding maintainability of writ petitions despite availability of an

alternative remedy are well settled, the present case is not one of

bypassing a statutory remedy and on the contrary, it is a case where

no efficacious statutory remedy exists. He has submitted that the

issues involved pertain to the protection of dignity and rights of a

female employee, which are rooted in constitutional guarantees and

are recognized under the POSH Act and in such circumstances, the

exercise of jurisdiction under Article 226 of the Constitution of India is

not only justified but necessary, as it constitutes the only effective

remedy available to the petitioner. He has submitted that the Hon'ble

Supreme Court in case of Medha Kotwal Lele (Supra) has noted

the absence of a clear appellate mechanism under the POSH

framework and even this Court, in pending proceedings, has stayed

similar proceedings before Labour / Industrial Courts and called upon

the State to clarify the issue of jurisdiction (SCA No. 15519 of 2024

Orders dated 25.11.2024 and 25.11.2025, LPA Nos. 579-580 of 2025-

Order dated 01.05.2025). He has submitted that the reliance on the

Industrial Employment (Standing Orders) Act, 1946 is rendered further

untenable in view of its repeal upon enforcement of the Industrial

Relations Code, 2020, thereby extinguishing even the purported

appellate framework and in these circumstances, the petitioner is left

remediless under the statutory scheme, thereby necessitating

invocation of the writ jurisdiction of this Court.

9.3Learned counsel Mr. Joshi has submitted that the objection

raised by the respondent No. 1 regarding maintainability on the

ground that it is not "State" under Article 12 is misconceived and

irrelevant in the facts of the present case as the present petition

primarily seeks enforcement of fundamental rights under Articles 14,

15 and 21 of the Constitution of India, particularly the right to dignity

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and a safe working environment, which are also embedded in the

object of the POSH Act and therefore, the said contention deserves to

be deprecated, as it is wholly extraneous to the controversy at hand

and does not materially affect the issue in question. He has submitted

that irrespective of whether an Internal Complaints Committee (ICC)

constituted under the POSH Act in the State of Gujarat falls within the

aforesaid definition, any challenge to the decision of such Committee

would lie only before this Court, being a Constitutional Court, in view

of the absence of any "Court" or "Tribunal" vested with the appellate

powers contemplated under Section 18 of the POSH Act read with

Rule 11 of the Rules framed thereunder. He has submitted that it is

well settled that writ jurisdiction can be invoked against private

bodies where: (i) public duties are discharged; (ii) statutory functions

are performed; or (iii) fundamental rights are violated and the ICC,

being a statutory / quasi-judicial body under the POSH Act, is

amenable to writ jurisdiction and the employer itself operates within a

regulatory framework and exercises significant public functions. In

support of his submissions he has referred and relied upon the

decision of the Hon'ble Supreme Court rendered in case of Kaushal

Kishor vs. State of Uttar Pradesh, reported in [2023] 4 SCC 1,

wherein, the Hon’ble Supreme Court has clarified that enforcement of

fundamental rights can, in appropriate cases, extend even against

private employers.

9.4Learned counsel Mr. Joshi has submitted that in view of the

aforesaid and in the absence of any applicable service rules governing

the petitioner, the petitioner is constrained to invoke the writ

jurisdiction of this Court for enforcement of her fundamental rights,

which are not only constitutionally guaranteed but are also reinforced

by the statement of objects and reasons of the POSH Act, which may

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kindly be taken into consideration by this Court while adjudicating the

present petition. He has further submitted that the recommendations

of the ICC did not form the basis for the termination of the petitioner,

and no material to the contrary has been placed on record by the

respondents before this Court. He has submitted that the provisions of

the POSH Act, being a piece of social welfare legislation, cannot be

construed in a narrow or restrictive manner, but must be interpreted

in the context of the "discomfort", whether mental or physical, caused

to the aggrieved woman and in the present case, the record (at Pages

81 and 82 of the petition) clearly evidences physical discomfort and

accordingly, the definition of "sexual harassment" under Sections 2(n)

and 3 of the POSH Act must be given a purposive and contextual

interpretation, and the conduct in question squarely falls within the

ambit of the said provisions. He has submitted that the definition of

sexual harassment under the POSH Act is wide enough to encompass

both direct and implied forms of unwelcome conduct and herein the

present case, the undisputed use of force upon the petitioner,

specifically, holding her wrist and forcibly snatching her mobile phone,

as recorded in the impugned Final Report, clearly constitutes

unwelcome physical conduct. He has submitted that the impugned

report proceeds on an erroneous premise that the absence of "sexual

intent" or "sexual undertones" negates the existence of sexual

harassment, which is contrary to the statutory scheme of Sections

2(n) and 3 of the POSH Act, which emphasize the nature and impact

of the conduct, including unwelcome physical contact, affront to

dignity, and the creation of a hostile or intimidating work

environment, rather than the subjective intent of the perpetrator and

significantly, the ICC itself has recorded that a superior officer held

the petitioner's wrist and forcibly snatched her phone, which conduct

is inherently unwelcome and violative of dignity, irrespective of the

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alleged motive. He has submitted that the statutory test under the

POSH Act is thus one of the nature and effect of the conduct, and not

the intent behind it and therefore, the reasoning adopted by the ICC is

contrary to the scheme of the Act. Moreover, the ICC has applied

inconsistent and arbitrary standards by rejecting the petitioner's

complaint on the ground of absence of "sexual intent", while

simultaneously entertaining a counter-complaint alleging "outraging

modesty" on tenuous material, and such contradictory reasoning is

manifestly arbitrary and violative of Article 14 of the Constitution. He

has submitted that even assuming arguendo that explicit sexual

intent is absent, the conduct in question squarely falls within the

ambit of Section 3(2) of the POSH Act, inasmuch as it resulted in the

creation of an intimidating and hostile work environment for the

petitioner and therefore, learned counsel Mr. Joshi has urged that the

present petition be allowed and the impugned Final Report dated

25.09.2025 be quashed and set aside.

ANALYSIS

10.I have heard the learned counsel appearing for the respective

parties and perused the material placed on record. For the foregoing

facts mentioned hereinabove, the issue posted before me for the

purpose of determining is that, whether the Final Report passed by

the respondent authority is required to be interfered with by this

Court by exercising jurisdiction under Article 226 / 227 of the

Constitution of India or not, whether there is any illegality / perpetual

illegality committed by the respondent authority while issuing the

Final Report, and without joining the concerned person who is going

to be directly effected by the order passed by this Court whether this

Court can interfere with the Final Report passed by the respondent

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authority and lastly, whether the present petition is maintainable

against the respondent No.1 – Gujarat Co-operative Milk Marketing

Federation Limited as a writ maintainable against a private society

without availing statutory alternative remedy available to the

petitioner.

11.After going through the facts of the present case and on perusal

of the impugned Final Report dated 25.09.2025 issued by the

respondent No.2 – ICC which is the subject matter in the present

petition, it emerges that the petitioner had raised a complaint under

the provisions of the POSH Act complaining about sexual harassment

against one Mr. Jayen Mehta, the Managing Director of the respondent

No.1 and Ms. Shefali Vijaywargiya. It appears from the record that the

petitioner was appointed as a Senior Executive (Sales) by the

respondent No.1 Co-operative Society on 18.04.20218 and she was to

report at Ludhiana Branch Office. Thereafter, the petitioner was

transferred from Ludhiana Branch to Head Office, Anand vide transfer

order dated 04.08.2018 and therefore, she reported at the Anand

Office and in the year 2021, she was promoted to the post of Assistant

Manager (Marketing). Then on 28.05.2025, the petitioner raised a

complaint before the respondent No.1 against the Managing Director -

Mr. Jayen Mehta alleging that Mr. Mehta misbehaved with her and

assaulted her and also improperly touched and twisted her hand. The

petitioner had also raised the said complaint before the Inspector

General of Police, Ahmedabad Range on 04.06.2025 and also

forwarded the same to the Chair Person of the Gujarat State Human

Rights Commission. Ms. Shefali Vijaywargiya, against whom

allegations were made, had also filed complaint against the present

petitioner before the respondent No.2 – ICC on 03.06.2025 alleging

that the petitioner and other unknown people had outraged her

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modesty and defamed her by circulating anonymous letters

containing false narratives. Thereafter, the said Mr. Jayen Mehta and

Ms. Shefali Vijaywargiya filed their respective replies through email on

18.07.2025 before the respondent No.1 – ICC. The petitioner had also

given her complaint to the members of the respondent No.2

Committee. In response thereto, the Internal Complaints Committee

as constituted under the Act had initiated inquiry and prepared a

detailed report on 25.09.2025 and also made recommendations to the

respondent No.1 – Co-operative Society in para-51, which is

reproduced hereunder :

RECOMMENDATIONS

“51. Case No. 1 of 2025 : Complaint of Ms. Ashima Minocha : ICC has

concluded that Ms. Ashima Minocha has made the allegation of sexual

harassment, knowing the same to be false and incorrect. The committee

members also observed that Ms. Ashima Minocha consciously concealed

material facts from this committee and did not give true narration of the

entire episode that unfolded on the evening of 28.05.2025. Ms Ashima

Minocha's statements to the committee, both in her interview and the

written complaint submitted, detailed the allegations of sexual harassment

and molestations by Jayen Melita and Ms Shefali Vijaywargiya. Based on the

available evidence, ICC is of the opinion that the statements are false and

misleading in nature.

Thus, according to Section 14 of the Sexual Harassment of Women at

Workplace (Prevention, Prohibition and Redressal) Act 2013, the ICC

members unanimously reject her complaint and advise the Administration

Department of GCMMF Ltd., to take suitable disciplinary action against Ms

Ashima Minocha in accordance with the provisions of the service rules

applicable.

Case No. 2 of 2025 : Complaint of Ms. Shefali Vijaywargiya : ICC has

concluded that the circulation of the above-mentioned anonymous

letters/patrika are serious and cognizable offence and the complainant, Ms.

Shefali Vijaywargiya was subjected to character assault through the

defamatory letters/patrika circulated with her photographs. The interim

police investigation report suggests involvement of Ms Ashima Minocha as

the photos of Ms. Shefali Vijaywargiya, circulated in the letters/patrika,

were found on her mobile. Therefore, as per Section 11(1) of the Sexual

Harassment of Women at Workplace (Prevention, Prohibition and Redressal)

Act 2013, ICC decides to admit the Complaint made by Ms. Shefali

Vijaywargiya dated 03.06.2015 (received on 09.06.2025) and forward it to

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police for detail investigation and take appropriate action as per law against

all involved. ICC also recommends the Administration department of

GCMMF to take appropriate disciplinary action as per rules against whoever

found involved.”

11.1 While recording the reasons in detail, the authority has

examined all the relevant aspects including CCTV Footage with regard

to the alleged incident as asserted by the petitioner against Mr. Jayen

Mehta, however, without joining Mr. Jayen Mehta, the petitioner has

preferred this petition and the contention raised by the learned

counsel Mr. Joshi for the petitioner and in light of the reasons stated

by the respondent No.2 – ICC, it appears that there is no illegality /

perpetual illegality committed by the ICC while recording the reasons

and recording the recommendations, however, the contention raised

by the learned counsel Mr. Gandhi for the respondents with regard to

the maintainability of the present petition is concerned, the

respondent No.1 is a Milk Marketing Federation registered under the

Gujarat Co-operative Societies Act, 1961 and whether the said

Federation is amenable under Article 12 of the Constitution of India or

not, is required to be looked into first. On perusal of the affidavit-in-

reply filed by the respondent No.1 and while examining the

averments made by the respondent No.1 in para-6 with regard to the

fact that whether writ can be issued against the respondent No.1 as it

is amenable under the writ jurisdiction as defined under Article 12 of

the Constitution because, the said Society is registered under the

Gujarat Co-operative Societies Act, 1961 on 09.07.1973 and though it

is a Multi State Co-operative Society and having monopoly in the field,

it does not fall under the ambit of Article 12.

11.2 At this juncture, it would be appropriate to refer to the

recent decision of the Hon’ble Apex Court rendered in case of

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Gajanan M. Naik vs. Goa State Co-Op. Milk Producers’ Union

Ltd. and Another, reported in [2024] SCC OnLine Bom 1269 ,

wherein, it has been observed and held by the Division Bench of the

Bombay High Court as under :

“C. WHETHER THE UNION ENJOYS A MONOPOLY/APEX STATUS

CONFERRED BY THE STATE OR IS STATE PROTECTED OR WHETHER

IT DISCHARGES PUBLIC FUNCTIONS AS PERFORMED BY A STATE :

I. It was submitted that the Union enjoys a total monopoly in the area of

producing/processing and distribution of milk in the State of Goa, and being

the only player in the market, the State has raised the Union to the status

of an Apex Milk Producer/Distributor. This pleading has been specifically

denied by the Respondent Union stating in its written that there is no

monopoly enjoyed by the Respondent in the market as there are atleast

two other milk producers and distributors named Amul and Govan who

process and market milk and milk products in the State of Goa. The reply

also states that similar business is also carried out by M/s Igloo Cold

Storage and Samarth Dairy, both of which have their units at IDC-Kundaim,

at Goa. The reply further states that there are other entities within the

State of Goa who receive and sell milk and milk products from neighbouring

States under the brand names Nandini, Warna, Gokul, Govind, Shree

Krishna, Mahanand, Arogya and Aditya. In the affidavit-in-rejoinder, apart

from a bald denial, there does not appear to be positive traverse or

assertion to these specific facts pleaded by the Respondent. There is no

reason to disbelieve the statements made in the affidavit of the

Respondent on this count and in any event these would be highly disputed

questions of fact on which we would place no reliance. We therefore hold

that the Petitioner, apart from the statement made in the Petition, which is

denied has not placed uncontroverted material before us to demonstrate

that the Respondent Union has complete monopoly at the behest of the

State, in the area of production and distribution of milk and milk products

within the State of Goa.

II. It was further contended that the Respondent Union has the status of an

Apex Milk Distribution Society having complete monopoly in the area of

supply/distribution of milk within the State of Goa. Under sub- section (3) of

Section of the Goa Co-operative Societies Act, and “Apex Society” means a

society, the area of operation of which extends to the whole of the State of

Goa, and the main objects of which is to promote the principal object of the

societies affiliated to it as members and to provide for the facilities and

services to them and which has been classified as an Apex Society by the

Registrar. Thus, by a definition, an Apex Society operates for implementing

objects of its constitutional society members and provides facilities and

services to its members; such a society is required to be declared as an

Apex Society by the Registrar. No such a declaration has been produced by

the Petitioner before us to claim that Respondent No.1 is an “Apex Society”

under the Act.

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The classification and sub-classification of societies under the Act is

done under Rule 8 of the Goa Co-operative Societies Rules, 2003, under

which Apex Societies are one such classification, besides other

classifications such as co- operative farming societies, of which Dairy

Societies are a sub-classification. On going through the scheme of the Co-

operative Societies Act, we do not find any special status conferred upon an

Apex Society, even if the Respondents were to have been declared as one,

to confer upon it a monopoly status, as contended.

III. A similar argument was raised before the Full Bench of this Court in

Vassudev Madkaikar (supra) which is dealt with in paras 25 and 26 of the

judgment. Therein it is held that merely because a particular co-operative

society has been declared as an Apex Society or, as in that case a “State

Co-operative Bank” and has received such recognition under the Act, it

cannot be said that it enjoys a complete monopoly in the field. This Court

has further noted that being declared an Apex Body, may confer certain

benefits on it, but by merely projecting it on a higher pedestal that other

societies registered under the Co-operative Societies Act, does not lead to

the conclusion that it satisfies the test of it being a functionality of the

State, attracting the expressing “Other Authorities”, within the meaning of

Article 12. On the same reasoning, this Court has held that such a society,

which enjoys apex status, does not confer upon it the character of being an

instrumentality or agency of the State Government. For reasons stated

above, we reject this contention.

IV. It was further argued that since the main object of the Respondent

No.1-Union is to distribute milk to consumers within the State of Goa, milk

being a product which is a necessity for human population and for their

sustenance such a function partakes of a public function which would be

performed by the State; that since such a public function is being

performed by the Union on behalf of the Government of Goa, it is acting as

an instrumentality of the State and is, therefore, amenable to the writ

jurisdiction of this Court. The Petitioners rely upon a Judgment of this Court

in Dr. Ajit T. Kossambe (supra) to buttress this contention.

At the outset, we note that the Court, whilst passing its order in that

case, was only dealing with such a contention raised at the interim stage

and for the purpose of grant of an interim relief to the Petitioner and has

not finally decided this issue. In fact, at para 18 of its order the question of

whether a writ would lie against the Respondent-Union was specifically kept

open to be decided at the stage of final hearing and the order specifically

notes that the view taken was only a prima facie view. In that view of the

matter, the question not having been finally decided, the judgment in Dr.

Ajit Kossambe (supra) cannot be relied upon by the Petitioner to decide the

maintainability of this Petition.

V. In dealing with the above submission, after having applied various tests

as laid down in the judgments cited by us to the facts of the present case,

we are quite clear that the Respondent-Union is a society, like any other,

registered under the Societies Registration Act, but is not a statutory body;

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the Society is purely of a private one, managed by its members through its

Board of Directors. The Petitioner is not claiming enforcement of any

function or duty by the Union which it might have to perform under the

statute governing its functioning. Keeping these facts in mind, we would

have to examine whether the society performs any functions which are of

public character.

In Shree Anandi Mukta (supra), the Supreme Court is has decreed

that if the rights claimed by a petitioner are purely of private character no

mandamus can issue; as in that case, if the management of the college was

purely a private body with no public duty, mandamus will not lie. It further

held that the words “any person or Authority” used in Article 226 are not to

be confined only to statutory authority and instrumentalities of State and

they may cover any other person or body performing public duty. What is

relevant is not the form of the body but the nature of the duty imposed on

the body, which must be judged in the light of positive obligation owed by

the person or authority, to the affected person.

VI. Andi Mukta Sadguru (supra) was further clarified in K.K. Saksena vs

International Commission on Irrigation and Drainage and ors., reported in

(2015) 4 SCC 670, holding that even when a body is performing public duty,

all its decisions are not subject to judicial review and it is only those

decisions which have a public element that can be reviewed in exercise of

writ jurisdiction. We quote from K.K. Saksena (supra) as under :

“49. There is yet another very significant aspect which needs to be

highlighted at this juncture. Even if a body performing public duty is

amenable to writ jurisdiction, all its decisions are not subject to

judicial review, as already pointed out above. Only those decisions

which have public element therein can be judicially reviewed under

writ jurisdiction. In The Praga Tools Corporation v. Shri C.A. Imanual

& Ors.11, as 11 (1969) 1 SCC 585 Page 3536 already discussed

above, this Court held that the action challenged did not have public

element and writ of mandamus could not be issued as the action

was essentially of a private character. That was a case where the

concerned employee was seeking reinstatement to an office.

50) We have also pointed out above that in Sata Venkata Subba Rao

(supra) this Court had observed that administrative law in India has

been shaped on the lines of English law. There are catena of

judgments in English courts taking same view, namely, contractual

and commercial obligations are enforceable only by ordinary action

and not by judicial review. In Queen (on the application of Hopley)

v . Liverpool Health Authority & Ors. (unreported) (30 July 2002),

Justice Pithford helpfully set out three things that had to be

identified when considering whether a public body with statutory

powers was exercising a public function amenable to judicial review

or a private function. They are: (I) whether the defendant was a

public body exercising statutory powers; (ii) whether the function

being performed in the exercise of those powers was a public or a

private one; and (iii) whether the defendant was performing a public

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duty owed to the claimant in the particular circumstances under

consideration.

51) Even in Anadi Mukta Sadguru (supra), which took a revolutionary

turn and departure from the earlier views, this Court held that 'any

other authority' mentioned in Article 226 is not confined to statutory

authorities or instrumentalities of the State defined under Article 12

of the Constitution, it also emphasized that if the rights are purely of

a private character, no mandamus could issue.

52) It is trite that contract of personal service cannot be enforced.

There are three exceptions to this rule, namely: (i) when the

employee is a public servant working under the Union of India or

State; (ii) when such an employee is employed by an authority/ body

which is a State within the meaning of Article 12 of the Constitution

of India; and (ii) when such an employee is 'workmen' within the

meaning of Section 2(s) of the Industrial Disputes Act, 1947 and

raises a dispute regarding his termination by invoking the machinery

under the said Act. In the first two cases, the employment ceases to

have private law character and 'status' to such an employment is

attached. In the third category of cases, it is the Industrial Disputes

Act which confers jurisdiction on the labour court/industrial tribunal

to grant reinstatement in case termination is found to be illegal.

53) In the present case, though we have held that ICID is not

discharging any public duty, even otherwise, it is clear that the

impugned action does not involve public law element and no 'public

law rights' have accrued in favour of the appellant which are

infringed. The service conditions of the appellant are not governed

in the same manner as was the position in Anadi Mukta Sadguru

(supra)”. (emphasis supplied)

VII. Merely claiming that supply and distribution of milk to the public within

the State of Goa partakes of a public function or duty, the Petitioner cannot

claim that the Union is a “State” for the purpose of Article 12. Distribution

of milk per se is not a public function, more so in the light of the fact that

the pleadings of the Respondents, which are otherwise not seriously

controverted that there is no monopoly in this activity with the Union and

there are multiple players in the market to compete. Applying the principles

enunciated by the Supreme Court in K.K. Saksena (supra) to the facts of the

present case, even if the Respondent-Society were discharging the duties

of a public nature, a service dispute such as the one raised in the present

Petition claiming a higher age of superannuation, does not permit the

Petitioner to take recourse to filing a petition seeking to invoke Article 226

of the Constitution of India to address it.

VIII. Vasudev Madkaikar (supra), referring to the aforementioned line of

judgments, has adopted a similar line of reasoning, which we believe is

binding on us. It holds :

“40. … Another important aspect which has to be borne in mind is

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that a writ can be issued for the discharge of only that public

function if at all a body performs a public function and not any other

function performed by it in the course of its business. Even if a body

is performing public duty and amenable to writ jurisdiction, as a

necessary sequel, all its decisions are not subject to judicial review

but only those decisions which have public element therein can be

judicially reviewed in exercise of writ jurisdiction. A fine line needs to

be drawn between the contract of service by bearing its connection

to the nature of contract and a contract of personnel service cannot

be enforced with the exception when the employee is a public

servant working under the Union of India or State, or an employee

who is employed by any authority which is recognised as 'State'

within the meaning of Article 12 and when such an employee fall

within the ambit of “workman” within the meaning of Section 2(s) of

the Industrial Dispute Act, 1947. There cannot be any dispute that

writ is maintainable under Article 226 of Constitution of India even

against a private management for enforcing the 'public duty' cast

upon them, but it cannot be said that the same is available also for

enforcing the terms and conditions of service in every situation.

With the said observations, the Accountant who had knocked the

doors of the Court who was aggrieved by issuance of a chargesheet

by the Socio-Economic Unique Foundation, a private Society without

any government control, and which was held to be not answering

the description of a State, an agency or instrumentality of State or

that of any other authority, it was held that though acting as a

accredited agent to the Government it discharges duties of public

nature, mere service dispute in terms of non-statutory service rules

does not permit the petitioner to take recourse to Article 226 of the

Constitution of India.…”

In the light of these observations, we are clearly of the opinion that

the Respondent-Society does not discharge or perform any public function.

21. In the light of what is held above, we conclude that the Respondent

No.1, Goa State Co-operative Milk Producers’ Union is not a “State” or an

instrumentality of the State nor can it be considered “any other Authority”

for the purpose of Article 12 of the Constitution of India and is, thus, not

amenable to writ jurisdiction of this Court under Article 226 of the

Constitution of India to seek the reliefs sought by the Petitioner in this

Petition. The Petition is dismissed as not maintainable. No costs.”

11.3 Yet in another recent decision of the Bombay High Court

rendered in case of ABC vs. Internal Complaints Committee and

Others, reported in [2025] SCC OnLine Bom 4192 , the Bombay

High Court has discussed in detail with regard to the maintainability of

the writ petition against the private entities as well as in the face of

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alternate remedy, and observed and held as under :

“Maintainability of the writ petition against the private entities:

25. Undoubtedly, the language of Article 226 is of wide import. If the words,

"to any person or authority" are literally construed, then writ can be issued

even against private persons. Likewise, if the term, "for any other

purposes" is interpreted literally, the writ court would be within its right in

issuing a writ for any purpose whosoever, even for resolving the private

disputes. However, these expressions have not been construed in such

literal fashion. By a catena of decisions, it is firmly crystallized that a writ

will lie against the State or the instrumentality of the State, and a private

entity only when such private entity performs a public function or

discharges a public duty involving a public law element.

Maintainability of the petition in the face of alternate remedy:

34. This leads me to the principal ground of challenge to the impugned

order on the count of failure to adhere to the principles of natural justice.

Under the scheme of POSH Act, the recommendation made by the ICC is

subject to an appeal under Section 18 of the said Act before the Appellate

Authority constituted thereunder. Existence of an alternate remedy, it is

well settled, is a self-imposed restraint on the exercise of the writ

jurisdiction. It is a well settled position in law that, despite, the availability

of an alternate remedy, the writ Court is not denuded of the power of

judicial review and may exercise the plenary writ jurisdiction. The situations

in which a writ court may exercise the jurisdiction, notwithstanding the

availability of an alternate remedy are also settled by a series of

judgments. In the case of Ghanashyam Mishra and Sons (supra), on which

reliance was placed by Ms. Singhania, the Supreme Court after referring to

the previous pronouncements, including the decision of the Supreme Court

in the case of Whirlpool Corporation vs. Registrar of Trade Marks 10,

enunciated that it has been consistently held that the alternate remedy

would not operate as a bar in at least three contingencies:

"(1) where the writ petition has been filed for the enforcement of

any of the Fundamental Rights;

(2) where there has been a violation of the principle of natural

justice; and

(3) where the order or proceedings are wholly without jurisdiction or

the vires of an Act is challenged."

49. Hence, the following order:

(I) The petition stands dismissed.

(ii) In the event the petitioner files an appeal under Section 18 of the POSH

Act, within a period of four weeks from today, the time spent by the

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petitioner in prosecuting this petition may be accounted for, if the question

of limitation arises.

(iii) By way of abundant caution, it is clarified that the aforesaid

consideration is confined to determine the tenability of the petition and this

Court may not be understood to have expressed any opinion of the merits

of the matter and, in the event, an appeal is preferred, all contentions of all

the parties would be open for consideration by the Appellate Authority, and

the Appellate Authority shall decide the appeal on its own merits and in

accordance with law, without being influenced by any of the observations

made hereinabove.”

11.4 In case of S.S. Rana vs. Registrar, Co-operative

Societies and Anr.,reported in [2006] 11 SCC 634, the Hon'ble

Apex Court has observed and held as under :

“11. The respondent No.1-Society does not answer any of the afore-

mentioned tests. In the case of a non-statutory society, the control

thereover would mean that the same satisfies the tests laid down by this

Court in Ajay Hasia vs. Khalid Mujib Sehravardi [(1981) 1 SCC 722]. [See

Zoroastrian Coop. Housing Society Ltd. vs. District Registrar, Coop.

Societies (Urban) & Ors. reported in 2005 (5) SCC.

13. The decision of the Seven Judge Bench of this Court in Pradeep Kumar

Biswas (supra), whereupon strong reliance has been placed, has no

application in the instant case. In that case, the Bench was deciding a

question as to whether in view of the subsequent decisions of this Court,

the law was correctly laid down in Sabajit Tewary vs. Union of India & Ors.

[(1975) 1 SCC 485], and it not whether the same deserved to be overruled.

The majority opined that the Council of Scientific and Industrial Research

(CSIR) was a 'State' within the meaning of Article 12 of the Constitution of

India. This Court noticed the history of the formation thereof, its objects and

functions, its management and control as also the extent of financial aid

received by it. Apart from the said fact it was noticed by reason of an

appropriate notification issued by the Central Government that CSIR was

amenable to the jurisdiction of the Central Administrative Tribunal in terms

of Section 14(2) of the Administrative Tribunals Act, 1985. It was on the

aforementioned premises this Court opined that Sabhajit Tewary (supra) did

not lay down the correct law. This Court reiterated the following six tests

laid down in Ajay Hasia vs. Khalid Mujib Sehravardi [(1981) 1 SCC 722]:

"(1) One thing is clear that if the entire share capital of the

corporation is held by Government, it would go a long way towards

indicating that the corporation is an instrumentality or agency of

Government.

(2) Where the financial assistance of the State is so much as to meet

almost entire expenditure of the corporation, it would afford some

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indication of the corporation being impregnated with Governmental

character.

(3) It may also be relevant factor #..whether the corporation enjoys

monopoly status which is State conferred or State protected.

(4) Existence of deep and pervasive State control may afford an

indication that the corporation is a State agency or instrumentality.

(5) If the functions of the corporation are of public importance and

closely related to Governmental functions, it would be a relevant

factor in classifying the corporation as an instrumentality or agency

of Government.

(6) 'Specifically, if a department of Government is transferred to a

corporation, it would be a strong factor supportive of this inference'

of the corporation being an instrumentality or agency of

Government."

This Court further held:

"This picture that ultimately emerges is that the tests formulated in

Ajay Hasia are not a rigid set of principles so that if a body falls

within any one of them it must, ex hypothesi, be considered to be a

State within the meaning of Article 12. The question in each case

would be whether in the light of the cumulative facts as established,

the body is financially, functionally and administratively dominated

by or under the control of the Government. Such control must be

particular to the body in question and must be pervasive. If this is

found then the body is a State within Article 12. On the other hand,

when the control is merely regulatory whether under statute or

otherwise, it would not serve to make the body a State."

(Emphasis supplied)

11.5 So far as the statutory alternative remedy available under

Section 18 of the POSH Act read with Rule 11 of the POSH Rules is

concerned, I am not impressed with the submissions made by the

learned counsel Mr. Joshi for the petitioner and thereby canvassing

that writ can be issued against the respondent No.1, which is wholly

without merits and thus, the said contention is rejected. Moreover,

considering the decisions of the Hon’ble Apex Court as discussed

hereinabove, when there is a statutory alternative efficacious remedy

is available to the petitioner, the Court cannot issue any writ, more

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particularly when the Final Report prepared by the respondent No.2 –

ICC is legal and valid and there is no any illegality committed by the

ICC while inquiring into the complaints in detail and I do not find any

infirmity in the impugned Final Report prepared by the ICC. Section 18

of the POSH Act read with Rule 11 of the POSH Rules, are reproduced

hereunder :

"Section 18- Appeal.-

(1) Any person aggrieved from the recommendations made under sub-

section (2) of section 13 or under clause (i) or clause (ii) of sub-section (3)

of section 13 or sub-section (1) or stub-section (2) of section 14 or section

17 or non-implementation of such recommendations may prefer an appeal

to the court or tribunal in accordance with the provisions of the service

rules applicable to the said person or where no such service rules exist

then, without prejudice to provisions contained in any other law for the time

being in force, the person aggrieved may prefer an appeal in such manner

as may be prescribed.

(2) the appeal under sub-section (1) shall be preferred within a period of

ninety days of the recommendations.

Rule 11 of the POSH Rules, 2013 provides for an Appeal as under :

"11. Appeal.- Subject to the provisions of Section 18, any person

aggrieved from the recommendations made under sub-section (2) of

section 13 or under clauses (i) or (ii) of sub-section (3) of section 13 or sub-

section (1) or sub-section (2) of section 14 or section 17 or non-

implementation of such recommendations may prefer an appeal to the

appellate authority notified under clause (a) of section 2 of Industrial

Employment (Standing Orders) Act, 1946 (20 of 1946).”

11.6 While examining the issue involved in the present petition

as narrated by the petitioner, even the provisions of Section 2(n) of

the POSH Act are required to be looked into, which are reproduced

hereunder :

“Section 2(n) “sexual harassment” includes any one or more of the

following unwelcome acts or behavior (whether directly or by implication)

namely:—

(i) physical contact and advances; or

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(ii) a demand or request for sexual favours; or

(iii) making sexually coloured remarks; or

(iv) showing pornography; or

(v) any other unwelcome physical, verbal or non-verbal conduct of sexual

nature;”

11.7 It would also be appropriate to refer to the provisions of

Section 3 of the POSH Act, which are reproduced hereunder :

“Section 3 : Prevention of sexual harassment.—

(1) No woman shall be subjected to sexual harassment at any workplace.

(2) The following circumstances, among other circumstances, if it occurs, or

is present in relation to or connected with any act or behaviour of sexual

harassment may amount to sexual harassment:—

(i) implied or explicit promise of preferential treatment in her employment;

or

(ii) implied or explicit threat of detrimental treatment in her employment; or

(iii) implied or explicit threat about her present or future employment

status; or

(iv) interference with her work or creating an intimidating or offensive or

hostile work environment for her; or

(v) humiliating treatment likely to affect her health or safety.”

11.8 Section 4 of the POSH Act provides for constitution of

Internal Complaints Committee, which is reproduced hereunder :

“Section 4 : Constitution of Internal Complaints Committee.

(1) Every employer of a workplace shall, by an order in writing, constitute a

Committee to be known as the “Internal Complaints Committee”:

Provided that where the offices or administrative units of the workplace are

located at different places or divisional or sub-divisional level, the Internal

Committee shall be constituted at all administrative units or offices.

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(2) The Internal Committees shall consist of the following members to be

nominated by the employer, namely:—

(a) a Presiding Officer who shall be a woman employed at a senior level at

workplace from amongst the employees:

Provided that in case a senior level woman employee is not available, the

Presiding Officer shall be nominated from other offices or administrative

units of the workplace referred to in sub-section(1):

Provided further that in case the other offices or administrative units of the

workplace do not have a senior level woman employee, the Presiding

Officer shall be nominated from any other workplace of the same employer

or other department or organisation;

(b) not less than two Members from amongst employees preferably

committed to the cause of women or who have had experience in social

work or have legal knowledge;

(c) one member from amongst non-governmental organisations or

associations committed to the cause of women or a person familiar with the

issues relating to sexual harassment:

Provided that at least one-half of the total Members so nominated shall be

women.

(3) The Presiding Officer and every Member of the Internal Committee shall

hold office for such period, not exceeding three years, from the date of

their nomination as may be specified by the employer.

(4) The Member appointed from amongst the non-governmental

organisations or associations shall be paid such fees or allowances for

holding the proceedings of the Internal Committee, by the employer, as

may be prescribed.

(5) Where the Presiding Officer or any Member of the Internal Committee,—

(a) contravenes the provisions of section 16; or

(b) has been convicted for an offence or an inquiry into an offence under

any law for the time being in force is pending against him; or

(c) he has been found guilty in any disciplinary proceedings or a disciplinary

proceeding is pending against him; or

(d) has so abused his position as to render his continuance in office

prejudicial to the public interest,

such Presiding Officer or Member, as the case may be, shall be removed

from the Committee and the vacancy so created or any casual vacancy

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shall be filled by fresh nomination in accordance with the provisions of this

section.”

11.9 Even the definition of Sexual Harassment under the Act is

wide enough to cover both direct or implied sexual conduct which

may involve physical, verbal or non-verbal conduct. The key

distinguishing feature is that the conduct is warranted and

unwelcomed by the recipient. The definition also includes reference to

create an offensive or intimidating or hostile work environment.

Herein the present case, whether the allegations made by the

petitioner fall under Section 2(n) of the POSH Act read with Section 3

or not. While examining the said fact, the respondent No.2 – ICC has

recorded in detail after examining relevant evidence including CCTV

footage and they have also referred the investigation carried out by

the police and thus, while carried out inquiry, the respondent No.2 –

ICC has completely followed the framework as provided under Section

11 of the POSH Act. The Inquiry Committee has submitted its report

strictly in compliance with the provisions of Section 11 of the POSH

Act. However, it is to be noted herein that Section 14 of the POSH Act

provides for protection to the concerned person against whom the

allegations are made by the complainant with regard to the offence of

sexual harassment. Section 14 makes it clear that in case that the

complaint lodged by the complainant is found to be false or malicious

and the complaint has been made knowing it to be false, the

recommendations made by the respondent No.2 – ICC are in

consonance with the settled legal principles enunciated under the Act.

Section 14 of the POSH Act reads as under :

“Section 14 : Punishment for false or malicious complaint and false

evidence.--

(1) Where the Internal Committee or the Local Committee, as the case may

be, arrives at a conclusion that the allegation against the respondent is

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malicious or the aggrieved woman or any other person making the

complaint has made the complaint knowing it to be false or the aggrieved

woman or any other person making the complaint has produced any forged

or misleading document, it may recommend to the employer or the District

Officer, as the case may be, to take action against the woman or the person

who has made the complaint under sub-section (1) or sub-section (2) of

section 9, as the case may be, in accordance with the provisions of the

service rules applicable to her or him or where no such service rules exist,

in such manner as may be prescribed:

Provided that a mere inability to substantiate a complaint or provide

adequate proof need not attract action against the complainant under this

section:

Provided further that the malicious intent on part of the complainant shall

be established after an inquiry in accordance with the procedure

prescribed, before any action is recommended.

(2) Where the Internal Committee or the Local Committee, as the case may

be, arrives at a conclusion that during the inquiry any witness has given

false evidence or produced any forged or misleading document, it may

recommend to the employer of the witness or the District Officer, as the

case may be, to take action in accordance with the provisions of the service

rules applicable to the said witness or where no such service rules exist, in

such manner as may be prescribed.”

11.10 The respondent No.2 – ICC has found that no sufficient

material exists as alleged by the petitioner and therefore, after

dealing with all these contentions raised by the petitioner before the

respondent No.2 – ICC, the Final Report has been prepared by the ICC

in detail. There is another underlying context in the present matter. In

allegations of sexual harassment, which are sensitive by their very

nature, one has to be careful that a reverse bias does not operate

against the involved male accused, since the statute itself provides

sufficient protection, a double layer of protection, if extended by

adjudicating forums to the complainant, might be counterproductive,

since excessive abuse of the provisions of the statute will create more

glass ceilings than they remove, creating fetters in the employment of

genuinely competent and hard-working employee. On perusal of the

above discussed facts and circumstances, the writ courts, in judicial

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review, have to be careful so as not to substitute their own opinions

for those of the adjudicating authorities unless there is any patent

unreasonableness, arbitrariness, mala fides, perversity and/or

illegality evident on the face of the record. I do not find any bias

operating in the mind of the ICC or reflected in the impugned

decision. Rather, the ICC complied with all principles of natural justice

by giving adequate opportunity of hearing and carefully assessing the

entire body of evidence before dismissing the complaint of the

petitioner. Thus, the principles of natural justice were adhered to and

there was no flaw whatsoever in the decision-making process

adopted. Hence, there is no scope of interference whatsoever with the

impugned decision of the ICC. I am in complete agreement with the

Final Report prepared by the respondent No.2 – ICC and I do not find

any merits in the present petition. Even on the ground of alternative

efficacious remedy available to the petitioner also, I am in complete

agreement with the preliminary objections raised by the respondents.

12.Accordingly, the present writ petition is hereby dismissed. Rule

is discharged. There shall be no order as to costs.

12.1 It is, however, made clear that this Court has not entered

into the merits of the impending criminal trial, if at all, initiated

against the concerned person against whom allegations of sexual

assault have been made by the petitioner. Even without joining such

person as a party to the proceedings, the petitioner has directly

prayed for relief before this Court, which is also to be noted herein.

12.2 It is observed that liberty is reserved in favour of the

petitioner to take recourse of remedy of appeal before the Appellate

Authority. It is also to be mentioned that if the petitioner prefers an

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appeal, the same shall be decided in accordance with law, after

affording ample opportunity of hearing to all the concerned parties,

without being influenced by this Order.

(HEMANT M. PRACHCHHAK,J)

Dolly

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