As per case facts, a senior female officer alleged she was sexually harassed at her workplace by a male officer from a different government department. When her department's internal committee ...
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2025 INSC 1415 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 404 OF 2024
DR. SOHAIL MALIK APPELLANT(S)
VERSUS
UNION OF INDIA & ANR. RESPONDENT(S)
J U D G M E N T
J.K. Maheshwari J.
1. Assailing the final judgment dated 30.06.2023 passed by the
High Court of Delhi at New Delhi (hereinafter referred to as “High
Court”) in WP (C) 8624/2023 confirming the judgment dated
23.06.2023 of the Central Administrative Tribunal, Principal
Bench, New Delhi (hereinafter referred to as “CAT”) in OA No.
1838/2023, the instant appeal has been preferred.
2. The jurisdictional challenge by the Appellant in the present
case, inter alia relates to whether the Internal Complaints
2
Committee (hereinafter referred to as “ICC”) constituted at a
certain Department of the Government of India can entertain a
complaint under the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013 (hereinafter
referred to as “POSH Act”) against the Appellant who was working
at a different Department of the Government of India at the
relevant time.
FACTS
3. The Appellant is a 2010 batch officer of the Indian Revenue
Service (hereinafter referred to as “IRS”) who, at the relevant point
of time, was posted as OSD, Investigation, Central Board of Direct
Taxes, Delhi. A 2004 batch Indian Administrative Service
(hereinafter referred to as “IAS”) officer (hereinafter referred to as
“aggrieved woman”) who was, at the relevant time, posted as
Joint Secretary, Department of Food and Public Distribution
alleged that on 15.05.2023, the Appellant sexually harassed her at
her workplace, which was at Krishi Bhawan, New Delhi.
4. An FIR bearing No. 53/2023 was registered by the aggrieved
woman against the Appellant on 16.05.2023 under Sections 354,
354D, 506, 509 of the Indian Penal Code, 1860 (hereinafter
3
referred to as “IPC”). As stated across the Bar, chargesheet has
been filed in the said case on 09.03.2024 under Sections 354, 354-
D, 506, 509, 201 and 204 of IPC and Section 67 of the Information
Technology Act, 2000 and the criminal case is pending.
5. Subsequently, a complaint under the POSH Act was
presented before the ICC constituted under Section 9 of the POSH
Act at the aggrieved woman’s department / workplace, i.e., the
Department of Food and Public Distribution on 24.05.2023.
6. Since the present appeal arises out of the challenge to the
jurisdiction of the ICC, we are not concerned with the fate of the
criminal case ensuing out of the incident and are not delving into
the particular facts and details as contained in the complaint.
7. Pursuant to the complaint by the aggrieved woman, the ICC
through its Member Secretary issued a meeting notice/order
bearing F No. 01/01/2023-ICC dated 13.06.2023 to the Appellant,
scheduling a hearing for the complaint, for him to appear on
22.06.2023 along with a response to the complaint.
8. It was at this stage, the Appellant filed OA No. 1838/2023
before the CAT seeking direction to set aside the order/notice
dated 13.06.2023 and all consequential proceedings arising
4
therefrom. The CAT dismissed the OA filed by the Appellant, which
has been upheld by the High Court vide the impugned order. Upon
preferring the present appeal before this Court, vide order dated
18.07.2023 it was directed that the inquiry may go on, but the final
outcome of the inquiry shall be kept in a sealed cover.
9. We have been informed across the Bar that the inquiry has
since concluded and we have also been supplied a copy of the
inquiry report and proceedings in sealed cover, which is awaiting
subsequent action, subject to outcome of the present appeal.
SCHEME OF THE POSH ACT
10. The scheme of the POSH Act itself is drawn from the
monumental judgment of this Court in Vishaka v. State of
Rajasthan
1 in a writ petition under Article 32 of the Constitution
of India filed by social activists, NGOs and public-spirited persons,
where this Court came up with various guidelines to enforce the
fundamental right of ‘gender equality’ and ‘right to life and liberty’
under Articles 14, 15, 19(1)(g) and 21 of the Constitution of India.
While coming up with the guidelines, the Court interpreted Article
14, 42 and 52(A) of the Constitution of India and also drew
1
(1997) 6 SCC 241.
5
inspiration from recommendations of the Convention on the
Elimination of All Forms of Discrimination Against Women
(hereinafter referred to as “CEDAW”).
11. This Court, even prior to the POSH Act being legislated,
through an interim order dated 26.04.2004 in Medha Kotwal Lele
v. Union of India
2 clarified that the Complaints Committee
envisaged by the Court in Vishaka (Supra) shall be deemed to be
an inquiry authority for the purposes of the Central Civil Services
(Conduct) Rules, 1964 (hereinafter referred to as “CCS (Conduct)
Rules”.
“2. Notice had been issued to several parties including the
Governments concerned and on getting appropriate
responses from them and now after hearing the learned
Attorney General for UOI and the learned counsel, we direct
as follows:
“Complaints Committee as envisaged by the Supreme
Court in its judgment in Vishaka case [(1997) 6 SCC 241
: 1997 SCC (Cri) 932] , SCC at p. 253, will be deemed to
be an inquiry authority for the purposes of the Central
Civil Services (Conduct) Rules, 1964 (hereinafter called
the CCS Rules) and the report of the Complaints
Committee shall be deemed to be an inquiry report under
the CCS Rules. Thereafter the disciplinary authority will
act on the report in accordance with the Rules.””
12. The POSH Act itself was notified on 09.12.2013. Along with
the said Act came to be enacted The Sexual Harassment of Women
2
(2013) 1 SCC 311.
6
at Workplace (Prevention, Prohibition and Redressal) Rules, 2013
(hereinafter referred to as “POSH Rules”).
13. Section 2(a) of the POSH Act defines the term ‘aggrieved
woman’:
“(a) “aggrieved woman” means -
(i) in relation to a workplace, a woman, of any age
whether employed or not, who alleges to have been
subjected to any act of sexual harassment by the
respondent;
(ii) in relation to dwelling place or house, a woman of any
age who is employed in such a dwelling place or house;”
14. The term ‘employee’ has been defined in Section 2(f) of the
POSH Act as:
“(f) “employee” means a person employed at a workplace for
any work on regular, temporary, ad hoc or daily wage basis,
either directly or through an agent, including a contractor,
with or, without the knowledge of the principal employer,
whether for remuneration or not, or working on a voluntary
basis or otherwise, whether the terms of employment are
express or implied and includes a co-worker, a contract
worker, probationer, trainee, apprentice or called by any
other such name;”
15. The term ‘employer’ has been defined in Section 2(g) of the
POSH Act as:
“(g) “employer’ means –
7
(i) in relation to any department, organisation,
undertaking, establishment, enterprise, Institution,
office, branch or unit of the appropriate Government or a
local authority, the head of that department,
organisation, undertaking, establishment, enterprise,
institution, office, branch or unit or such other officer as
the appropriate Government or the local authority, as the
case maybe, may by an order specify in this behalf;
(ii) in any workplace not covered under sub-clause (i), any
person responsible for the management, supervision and
control of the workplace.
Explanation. —For the purposes of this sub-clause
“management” includes the person or board or committee
responsible for formulation and administration of polices
for such organisation;
(iii) in relation to workplace covered under sub-clauses (i)
and (ii), the person discharging contractual obligations
with respect to his or her employees;
(iv) in relation to a dwelling place or house, a person or a
household who employs or benefits from the employment
of domestic worker, irrespective of the number, time
period or type of such worker employed, or the nature of
the employment or activities performed by the domestic
worker;”
16. The word ‘respondent’ has been defined in Section 2(m) of the
POSH Act as “a person against whom the aggrieved woman has
made a complaint under section 9”.
17. Most importantly, the word ‘workplace’ has been defined in
Section 2(o) of the POSH Act as follows:
“(o) “workplace” includes –
8
(i) any department, organisation, undertaking,
establishment, enterprise, institution, office, branch or
unit which is established, owned, controlled or wholly or
substantially financed by funds provided directly or
indirectly by the appropriate Government or the local
authority or a Government company or a corporation or a
co-operative society;
(ii) any private sector organisation or a private venture,
undertaking, enterprise, institution, establishment,
society, trust, non-governmental organisation, unit or
service provider carrying on commercial, professional,
vocational, educational, entertainmental, industrial,
health services or financial activities including
production, supply, sale, distribution or service;
(iii) hospitals or nursing homes;
(iv) any sports institute, stadium, sports complex or
competition or games venue, whether residential or not
used for training, sports or other activities relating
thereto;
(v) any place visited by the employee arising out of or
during the course of employment including transportation
by the employer for undertaking such journey;
(vi) a dwelling place or a house;
18. Section 2(h) of the POSH Act defines ‘Internal Committee’ as
an Internal Complaints Committee constituted under Section 4 of
the POSH Act, which, in turn, provides for constitution of the
Internal Complaints Committee, its composition, membership and
manner of removal of members.
19. The definition of the term ‘sexual harassment’ itself has been
laid down in Section 2(n) of the POSH Act, while Section 3(2) of the
9
Act further explains ‘acts’ or ‘circumstances’ which may amount to
sexual harassment. Section 3(1) of the POSH Act provides that ‘No
woman shall be subjected to sexual harassment at any workplace’.
20. A complaint of sexual harassment may be made by an
aggrieved woman under Section 9 of the POSH Act, as quoted
below:
“9. Complaint of sexual harassment.– (1) Any aggrieved
woman may make, in writing, a complaint of sexual
harassment at workplace to the Internal Committee if so
constituted, or the Local Committee, in case it is not so
constituted, within a period of three months from the date of
incident and in case of a series of incidents, within a period
of three months from the date of last incident:
Provided that where such complaint cannot be made in
writing, the Presiding Officer or any Member of the Internal
Committee or the Chairperson or any Member of the Local
Committee, as the case may be, shall render all reasonable
assistance to the woman for making the complaint in
writing:
Provided further that the Internal Committee or, as the case
may be, the Local Committee may, for the reasons to be
recorded in writing, extend the time limit not exceeding three
months , if it is satisfied that the circumstances were such
which prevented the woman from filing a complaint within
the said period.
(2) Where the aggrieved woman is unable to make a
complaint on account of her physical or mental in capacity
or death or otherwise, her legal heir or such other person as
may be prescribed may make a complaint under this
section.”
21. The ICC or the Local Committee, upon receiving a complaint,
may, at the request of the aggrieved woman, take steps to settle
10
the matter between the aggrieved woman and the respondent
through ‘conciliation’ under Section 10 of the POSH Act.
22. In case an inquiry is to be made into the complaint filed by
an aggrieved woman, Section 11 of the POSH Act lays down the
provision for inquiry into the complaint. It is a major bone of
contention in the present case and is relevant, hence quoted as
follows:
“11. Inquiry into complaint.– (1) Subject to the provisions
of section 10, the Internal Committee or the Local
Committee, as the case may be, shall, where the respondent
is an employee, proceed to make inquiry into the complaint
in accordance with the provisions of the service rules
applicable to the respondent and where no such rules exist,
in such manner as may be prescribed or in case of a
domestic worker, the Local Committee shall, if prima facie
case exist, forward the complaint to the police, within a
period of seven days for registering the case under section
509 of the Indian Penal Code (45 of 1860), and any other
relevant provisions of the said Code where applicable:
Provided that where the aggrieved woman informs the
Internal Committee or the Local Committee, as the case may
be, that any term or condition of the settlement arrived at
under sub-section (2) of section 10 has not been complied
with by the respondent, the Internal Committee or the Local
Committee shall proceed to make an inquiry into the
complaint or, as the case may be, forward the complaint to
the police:
Provided further that where both the parties are employees,
the parties shall, during the course of inquiry, be given an
opportunity of being heard and a copy of the findings shall
be made available to both the parties enabling them to make
representation against the findings before the Committee.
(2) Notwithstanding anything contained in section 509 of the
Indian Penal Code (45 of 1860), the court may, when the
11
respondent is convicted of the offence, order payment of
such sums as it may consider appropriate, to the aggrieved
woman by the respondent, having regard to the provisions
of section 15.
(3) For the purpose of making an inquiry under sub-section
(1), the Internal Committee or the Local Committee, as the
case may be, shall have the same powers as are vested in
a civil court the Code of Civil Procedure, 1908 (5 of 1908)
when trying a suit in respect of the following matters,
namely:—
(a) summoning and enforcing the attendance of any
person and examining him on oath;
(b) requiring the discovery and production of documents;
and
(c) any other matter which may be prescribed.
(d) The inquiry under sub-section (1) shall be completed
within a period of ninety days.”
23. Thereafter, Section 13 of the POSH Act lays down the
procedure which is to be followed upon completion of an inquiry.
The said provision is also relevant and is therefore quoted herein:
“13. Inquiry report.— (1) On the completion of an inquiry
under this Act, the Internal Committee or the Local
Committee, as the case may be, shall provide a report of its
findings to the employer, or as the case may be, the District
Officer within a period of ten days from the date of
completion of the inquiry and such report be made available
to the concerned parties.
(2) Where the Internal Committee or the Local Committee, as
the case may be, arrives at the conclusion that the allegation
against the respondent has not been proved, it shall
recommend to the employer and the District Officer that no
action is required to be taken in the matter.
(3) Where the Internal Committee or the Local Committee, as
the case may be, arrives at the conclusion that the allegation
against the respondent has been proved, it shall
12
recommend to the employer or the District Officer, as the
case may be—
(i) to take action for sexual harassment as a misconduct
in accordance with the provisions of the service rules
applicable to the respondent or where no such service
rules have been made, in such manner as may be
prescribed;
(ii) to deduct, notwithstanding anything in the service
rules applicable to the respondent, from the salary or
wages of the respondent such sum as it may consider
appropriate to be paid to the aggrieved woman or to her
legal heirs, as it may determine, in accordance with the
provisions of section 15:
Provide that in case the employer is unable to make such
deduction from the salary of the respondent due to his being
absent from duty or cessation of employment it may direct
to the respondent to pay such sum to the aggrieved woman:
Provided further that in case the respondent fails to pay the
sum referred to in clause (ii), the Internal Committee or as,
the case may be, the Local Committee may forward the
order for recovery of the sum as an arrear of land revenue
to the concerned District Officer.
(4) The employer or the District Officer shall act upon the
recommendation within sixty days of its receipt by him.”
24. The POSH Act, in Section 19, also imposes an active duty on
the ‘employer’ to prohibit and prevent sexual harassment at the
workplace and to co-operate with the working of the ICC. The said
provision is relevant, and is therefore reproduced as under:
“19. Duties of employer.– Every employer shall –
(a) provide a safe working environment at the workplace
with shall include safety from the persons coming into
contact at the workplace;
13
(b) display at any conspicuous place in the workplace, the
penal consequences of sexual harassments; and the order
constituting, the Internal Committee under sub-section (1) of
section 4;
(c) organise workshops and awareness programmes at
regular intervals for sensitising the employees with the
provisions of the Act and orientation programmes for the
members of the Internal Committee in the manner as may
be prescribed;
(d) provide necessary facilities to the Internal Committee or
the Local Committee, as the case may be, for dealing with
the complaint and conducting an inquiry;
(e) assist in securing the attendance of respondent and
witnesses before the Internal Committee or the Local
Committee, as the case may be;
(f) make available such information to the Internal
Committee or the Local Committee, as the case be, as it may
require having regard to the complaint made under sub-
section (1) of section 9;
(g) provide assistance to the woman if she so chooses to file
a complaint in relation to the offence under the Indian Penal
Code (45 of 1860) or any other law for the time being in
force;
(h) cause to initiate action, under the Indian Penal Code (45
of 1860) or any other law for the time being in force, against
the perpetrator, or if the aggrieved woman so desires, where
the perpetrator is not an employee, in the workplace at
which the incident of sexual harassment took place;
(i) treat sexual harassment as a misconduct under the
service rules and initiate action for such misconduct;
(j) monitor the timely submission of reports by the Internal
Committee.”
PROCEEDINGS BEFORE THE CAT AND HIGH COURT
25. The thrust of the challenge as presented by the Appellant
before the CAT and the High Court, in short, was that since the
Department of Revenue was the controlling authority of the
14
Appellant, the ICC constituted under the Department of Food and
Public Distribution did not have the jurisdiction to entertain the
complaint filed by the aggrieved woman under Section 9 of the
POSH Act. As such, the Appellant contended that it was only the
ICC constituted under his own Department which can institute
ICC proceedings against him. To buttress this argument, much
emphasis was laid by the Appellant on Section 11 of the POSH Act.
The Appellant urged that use of the words ‘where the respondent
is an employee’ in Section 11 implies that the inquiry into a
complaint for sexual harassment must be done by the ICC
constituted at the workplace where the Appellant is employed.
Consequently, he argued that the workplace of the aggrieved
woman and the ‘respondent’ alleged of the act of sexual
harassment have to be the same, for the POSH Act to apply.
26. The CAT dismissed the challenge laid out by the Appellant
and held that the word ‘where’ used in Section 11 of the POSH Act
relates to difference in procedure to be followed by both types of
committees (ICC or Local Committee) when the 'respondent’ is an
employee and when he is a domestic worker. The CAT also
observed that the word ‘workplace’ has been defined in the POSH
Act in relation to the aggrieved woman and the complaint under
15
Section 9 of the POSH Act may be enquired upon even when the
‘respondent’ has no relation whatsoever with the workplace of the
aggrieved woman.
27. The High Court, in the impugned order, engaged in purposive
interpretation of the POSH Act and held that if the provisions of
the POSH Act are interpreted in the manner as suggested by the
Appellant, it shall be contrary to the intent and purpose behind
enacting the POSH Act. The Court agreed with the interpretation
of Section 11 of the POSH Act by the CAT and held that Section
11(1) does not require that the aggrieved woman and the
‘respondent’ must be working in the same Department. The High
Court also interpreted the phrase ‘service rules applicable to the
respondent’ as mentioned in Section 11 to hold that this phrase
itself shows that the ‘respondent’ need not be an employee of the
same workplace. The High Court also interpreted Section 13 of the
POSH Act and held that the ICC, on finding that sexual
harassment has been proved, may recommend to the employer or
District Officer of the ‘respondent’ to take action in accordance
with services rules applicable to them.
16
ARGUMENTS ADVANCED
28. Learned Senior Counsel Mr. Vipin Sanghi appearing for the
Appellant has argued with vehemence that for civil servants, the
CCS (Conduct) Rules are a complete code on sexual harassment
and the correct recourse against a civil servant, therefore, is
institution of disciplinary proceedings in accordance with Rule 3C
of the CCS (Conduct) Rules. It is urged that such a disciplinary
proceeding can only be handled by the ICC constituted in his
department, since his controlling authority is different from the
controlling authority of the aggrieved woman where ICC
proceedings have been instituted. Placing heavy reliance on
Section 13 of the POSH Act, he argues that the ICC constituted
where the appellant is an employee, solely has jurisdiction to
entertain complaints of sexual harassment, since it is only his
employer which may take action based on the findings of the ICC.
Learned Senior Counsel also urged that the use of the phrase
‘where the respondent is an employee’ in Section 11 necessarily
requires that the ICC proceedings must be instituted at the
workplace of the Appellant. It has been argued that as per Section
19(h) of the POSH Act, the only remedy available to the aggrieved
woman when the perpetrator of an act of sexual harassment is not
17
an employee of the same department, is to initiate action under
the IPC or any other law.
29. Per contra, learned Assistant Solicitor General, Ms.
Aishwarya Bhati has argued that such an interpretation of Section
11 and other provisions of the POSH Act would cause violence to
the general ethos of the POSH Act and defeat its very purpose. She
has urged that the POSH Act was legislated as a special law for
women in order to prevent the hardship faced by women at their
workplace and any interpretation of the Act must be done keeping
this object in mind. The wide ambit given to the word ‘workplace’
in Section 2(o) of the POSH Act and the word ‘employer’ in Section
2(g) of the POSH Act shows the legislative intent to ensure sexual
harassment complaints by all women are duly addressed and
enquired into. There is no vacuum in the POSH Act for dealing with
inter-departmental enquiries of sexual harassment complaints.
Under Section 13(3), upon allegations of sexual harassment being
proved, it has been said that the employer or the district officer
shall take necessary action, which duly addresses the present
situation. She argued that the option to initiate criminal
proceedings under Section 19(h) cannot be read to be in derogation
or exclusion of the proceedings under the POSH Act.
18
ISSUES FOR CONSIDERATION
30. After hearing learned counsel for the parties at length and on
perusal of the facts and material placed on record, the following
issues arise for consideration:
(i) Whether the ICC constituted in one department of the
Central Government has the jurisdiction to entertain a
complaint of sexual harassment under the POSH Act
against an employee of a different department of the
Central Government?
(ii) Whether the use of the words ‘where the respondent is
an employee’ as contained in Section 11 of the POSH
Act would mandate that ICC proceedings must be
instituted and carried out at the workplace of the
‘respondent’ instead of the workplace of the aggrieved
woman where incident occurred and complaint was
made?
(iii) If the answer to Issue No. 2 is in the negative, under the
scheme of Section 13, how is action supposed to be
taken by the department of the ‘respondent’ in
19
pursuance of the findings of the ICC constituted at the
aggrieved woman’s department?
(iv) Whether the proceedings of the ICC constituted at the
workplace of the aggrieved woman, in the present case,
have caused any prejudice to the Appellant, warranting
interference by this Court?
ANALYSIS OF ISSUES I and II
Since both issues are intertwined, we are appreciating and
answering contentions in respect of these issues collectively:
31. The dispute in the present case is confined to the
jurisdictional challenge made by the Appellant herein to the
institution of ICC proceedings against him by the ICC constituted
at the workplace of the aggrieved woman. We have gone through
the documents on record and heard the learned counsel for the
parties at length. In order to resolve the present case, we must
engage in interpretation of various provisions contained in the
POSH Act.
20
Principles of Statutory Interpretation
32. Language employed in a statute is the best aid for statutory
interpretation. The first and primary rule of construction is the
intention of the Legislature and the same must be found in the
words used by the Legislature itself, as held in Kanai Lal Sur v.
Paramnidhi Sadhukhan .
3 However, where there is doubt or
ambiguity about the meaning of the words used, interpretation
must be made keeping in mind the object and purpose of the
statute. Therefore, both text and context of a statute have their
own relevance while interpreting provisions of a statute. This
Court, in RBI v. Peerless General Finance & Investment Co.
Ltd.
4
observed as thus:
“33. Interpretation must depend on the text and the context.
They are the bases of interpretation. One may well say if
the text is the texture, context is what gives the colour.
Neither can be ignored. Both are important . That
interpretation is best which makes the textual interpretation
match the contextual. A statute is best interpreted when we
know why it was enacted. With this knowledge, the statute
must be read, first as a whole and then section by section,
clause by clause, phrase by phrase and word by word. If a
statute is looked at, in the context of its enactment, with the
glasses of the statute-maker, provided by such context, its
scheme, the sections, clauses, phrases and words may take
colour and appear different than when the statute is looked
at without the glasses provided by the context. With these
3
Kanai Lal Sur v. Paramnidhi Sadhukhan, 1957 SCC OnLine SC 8.
4
(1987) 1 SCC 424.
21
glasses we must look at the Act as a whole and discover
what each section, each clause, each phrase and each word
is meant and designed to say as to fit into the scheme of the
entire Act. No part of a statute and no word of a statute can
be construed in isolation. Statutes have to be construed so
that every word has a place and everything is in its place.
It is by looking at the definition as a whole in the setting of
the entire Act and by reference to what preceded the
enactment and the reasons for it that the Court construed
the expression “Prize Chit” in Srinivasa [(1980) 4 SCC 507 :
(1981) 1 SCR 801 : 51 Com Cas 464] and we find no reason
to depart from the Court's construction.”
33. More recently, in Eera v. State (NCT of Delhi),
5 Dipak Misra,
J. in his separate concurring opinion, interpreted various
judgments, both domestic and international, and held that along
with textual interpretation, purpose, intent and context must also
be seen, especially when interpreting a social welfare legislation:
“64. I have referred to the aforesaid authorities to highlight
that legislative intention and the purpose of the legislation
regard being had to the fact that context has to be appositely
appreciated. It is the foremost duty of the Court while
construing a provision to ascertain the intention of the
legislature, for it is an accepted principle that the legislature
expresses itself with use of correct words and in the
absence of any ambiguity or the resultant consequence does
not lead to any absurdity, there is no room to look for any
other aid in the name of creativity. There is no quarrel over
the proposition that the method of purposive construction
has been adopted keeping in view the text and the context
of the legislation, the mischief it intends to obliterate and the
fundamental intention of the legislature when it comes to
social welfare legislations. If the purpose is defeated,
absurd result is arrived at. The Court need not be miserly
and should have the broad attitude to take recourse to in
5
(2017) 15 SCC 133.
22
supplying a word wherever necessary. Authorities referred
to hereinabove encompass various legislations wherein the
legislature intended to cover various fields and address the
issues. While interpreting a social welfare or beneficent
legislation one has to be guided by the “colour”, “content”
and the “context of statutes” and if it involves human rights,
the conceptions of Procrustean justice and Lilliputian
hollowness approach should be abandoned. The Judge has
to release himself from the chains of strict linguistic
interpretation and pave the path that serves the soul of the
legislative intention and in that event, he becomes a real
creative constructionist Judge.
65. I have perceived the approach in Hindustan Lever
Ltd. [Hindustan Lever Ltd. v. Ashok Vishnu Kate, (1995) 6
SCC 326 : 1995 SCC (L&S) 1385] and Deepak
Mahajan [Directorate of Enforcement v. Deepak Mahajan,
(1994) 3 SCC 440 : 1994 SCC (Cri) 785] , Pratap
Singh [Pratap Singh v. State of Jharkhand, (2005) 3 SCC
551 : 2005 SCC (Cri) 742] and many others. I have also
analysed where the Court has declined to follow the said
approach as in R.M.D. Chamarbaugwalla [R.M.D.
Chamarbaugwalla v. Union of India, AIR 1957 SC 628] and
other decisions. The Court has evolved the principle that the
legislative intention must be gatherable from the text,
content and context of the statute and the purposive
approach should help and enhance the functional principle
of the enactment. That apart, if an interpretation is likely to
cause inconvenience, it should be avoided, and further
personal notion or belief of the Judge as regards the
intention of the makers of the statute should not be thought
of. And, needless to say, for adopting the purposive
approach there must exist the necessity. The Judge,
assuming the role of creatively constructionist personality,
should not wear any hat of any colour to suit his thought
and idea and drive his thinking process to wrestle with
words stretching beyond a permissible or acceptable limit.
That has the potentiality to cause violence to the language
used by the legislature. Quite apart from, the Court can take
aid of casus omissus, only in a case of clear necessity and
further it should be discerned from the four corners of the
statute. If the meaning is intelligible, the said principle has
23
no entry. It cannot be a ready tool in the hands of a Judge
to introduce as and what he desires.”
34. R.F. Nariman, J. in his separate concurring opinion in Eera
(Supra), agreed with adopting principles of interpretation which
duly address both text and context of a statute. Relevant
paragraphs of the said judgment are quoted herein for ready
reference:
“124. Indeed, the modern trend in other Commonwealth
countries, including UK and Australia, is to examine text as
well as context, and object or purpose as well as literal
meaning. Thus, in Oliver Ashworth (Holdings)
Ltd. v. Ballard (Kent) Ltd. [Oliver Ashworth (Holdings)
Ltd. v. Ballard (Kent) Ltd., 2000 Ch 12 : (1999) 3 WLR 57 :
(1999) 2 All ER 791 (CA)] , Laws, L.J. stated the modern rule
as follows : (Ch p. 34)
“By way of introduction to the issue of statutory
construction I should say that in my judgment it is
nowadays misleading — and perhaps it always was —
to seek to draw a rigid distinction between literal and
purposive approaches to the interpretation of Acts of
Parliament. The difference between purposive and literal
construction is in truth one of degree only. On received
doctrine we spend our professional lives construing
legislation purposively, inasmuch as we are enjoined at
every turn to ascertain the intention of Parliament. The
real distinction lies in the balance to be struck, in the
particular case, between the literal meaning of the words
on the one hand and the context and purpose of the
measure in which they appear on the other. Frequently
there will be no opposition between the two, and then no
difficulty arises. Where there is a potential clash, the
conventional English approach has been to give at least
very great and often decisive weight to the literal
meaning of the enacting words. This is a tradition which
I think is weakening, in face of the more purposive
approach enjoined for the interpretation of legislative
24
measures of the European Union and in light of the House
of Lords' decision in Pepper (Inspector of
Taxes) v. Hart [Pepper (Inspector of Taxes) v. Hart, 1993
AC 593 : (1992) 3 WLR 1032 : (1993) 1 All ER 42 : 1992
UKHL 3 (HL)] . I will not here go into the details or merits
of this shift of emphasis; save broadly to recognise its
virtue and its vice. Its virtue is that the legislator's true
purpose may be more accurately ascertained. Its vice is
that the certainty and accessibility of the law may be
reduced or compromised. The common law, which
regulates the interpretation of legislation, has to balance
these considerations.”
127. It is thus clear on a reading of English, US, Australian
and our own Supreme Court judgments that the “Lakshman
Rekha” has in fact been extended to move away from the
strictly literal rule of interpretation back to the rule of the old
English case of Heydon [Heydon case, (1584) 3 Co Rep 7a :
76 ER 637] , where the Court must have recourse to the
purpose, object, text and context of a particular provision
before arriving at a judicial result. In fact, the wheel has
turned full circle. It started out by the rule as stated in 1584
in Heydon case [Heydon case, (1584) 3 Co Rep 7a : 76 ER
637] , which was then waylaid by the literal interpretation
rule laid down by the Privy Council and the House of Lords
in the mid-1800s, and has come back to restate the rule
somewhat in terms of what was most felicitously put over
400 years ago in Heydon case [Heydon case, (1584) 3 Co
Rep 7a : 76 ER 637] .”
35. Another important principle which we must bear in mind is
that a part of a section cannot be read in isolation, the
construction of the entire section must be made as a sum of its
parts and no word or phrase thereof can be picked out in isolation
to give a certain meaning to the section as a whole. This Court, in
25
Balasinor Nagrik Coop. Bank Ltd. v. Babubhai Shankerlal
Pandya
6
held:
“…It is an elementary rule that construction of a section is
to be made of all parts together. It is not permissible to omit
any part of it. For, the principle that the statute must be read
as a whole is equally applicable to different parts of the
same section…..”
Textual Interpretation of Section 11 of the POSH Act
36. Although we have quoted the entire provision of Section 11 of
the POSH Act above, in the interest of lucidity and easy
comprehension, Section 11(1) is reproduced as follows:
“(1) Subject to the provisions of section 10, the Internal
Committee or the Local Committee, as the case may be,
shall, where the respondent is an employee, proceed to
make inquiry into the complaint in accordance with the
provisions of the service rules applicable to the respondent
and where no such rules exist, in such manner as may be
prescribed or in case of a domestic worker, the Local
Committee shall, if prima facie case exist, forward the
complaint to the police, within a period of seven days for
registering the case under section 509 of the Indian Penal
Code (45 of 1860), and any other relevant provisions of the
said Code where applicable:
Provided that where the aggrieved woman informs the
Internal Committee or the Local Committee, as the case may
be, that any term or condition of the settlement arrived at
under sub-section (2) of section 10 has not been complied
with by the respondent, the Internal Committee or the Local
Committee shall proceed to make an inquiry into the
6
(1987) 1 SCC 606.
26
complaint or, as the case may be, forward the complaint to
the police:
Provided further that where both the parties are employees,
the parties shall, during the course of inquiry, be given an
opportunity of being heard and a copy of the findings shall
be made available to both the parties enabling them to make
representation against the findings before the Committee.”
37. The Appellant’s primary argument is that ‘where the
respondent is an employee’ as mentioned in Section 11 of the
POSH Act must be read to mean that the ICC constituted at the
workplace of the ‘respondent’ alone has jurisdiction to entertain a
sexual harassment complaint against him by the aggrieved woman
and not the ICC constituted at the workplace of the aggrieved
woman under the provisions of the POSH Act.
38. To examine the said contention, the meaning of the word
‘where’ as used in the context of Section 11 becomes significant. If
the expression ‘where’ were to denote a certain place / location,
only then the argument of the Appellant would hold ground. On
examination of the colloquial meaning of the word ‘where’ as it is
used in common parlance, the Concise Oxford English Dictionary,
7
defines the word ‘where’ as ‘in or to what place or position’ or ‘in
what direction or respect’.
7
10
th
Edition, 2002, Pg. 1629.
27
39. Coming to the legal definition, however, the Stroud’s Judicial
Dictionary of Words and Phrases,
8 refers to the judgement of the
House of Lords in Davies Jenkins & Co. Ltd. and Davies
(Inspector of Taxes)
9 in which case a section reading ‘Subject to
the provisions of this section, where a company has a deficit for tax
purposes during any accounting period of the company, and
receives a subvention payment in respect of that period from an
associated company having a surplus for tax purposes in the
corresponding period, then …’ was being interpreted by the House
of Lords, and the expression ‘where’ was interpreted in the
following manner:
“The word “where” clearly does not refer to a place. It is
used in the sense of “if” or “whenever.”
40. P. Ramanatha Aiyar’s Advanced Law Lexicon,
10 and Justice
C.K. Thakker’s Encyclopaedic Law Lexicon,
11 while defining the
word ‘where’, both refer to the judgement of this Court in S.G.
Glass Works (P) Ltd. v. CCE ,
12 in which this Court was
interpreting an Excise notification which read as under –
8
South Asian Edition, 2008, Volume 3 at Pg. 3009.
9
[1968] AC 1097.
10
7
th
Edition, Volume 4, at Pg. 6754.
11
2008/2009 Edition, Volume 4 at Pg. 5030.
12
(1995) 1 SCC 680.
28
‘“Glassware including tableware produced by semi -
automatic process, that is to say, where molten glass is
taken to the first mould manually and where either
compressed air or mechanically operated press is used. …”
In respect to use of the expression ‘where’, this Court interpreted
the notification as thus:
“ The use of the word ‘where’ before ‘molten glass’ and
‘compressed air’ is significant. According to dictionary the
word ‘where’ may mean ‘place or situation’. In the context
it has been used it is not descriptive of any place but has
been used in the sense of relation or situation. In other
words what the notification contemplates is that if the
glassware is manufactured by taking the molten glass
manually to the first mould and then the compressed air or
mechanically operated press is applied to it either in the first
or second mould then it would be covered in the notification.
If the intention would have been to confine it to first mould
then it was not necessary to use ‘where’ a second time. It is
disjunctive and has been used to denote the same meaning,
namely, if in processing of it compressed air is used then it
is deemed to be a production by semi-automatic process.
The Tribunal in reading the words ‘where either compressed
air or mechanically operated press’ along with the earlier
expression ‘first mould’ committed an error of law.”
41. Keeping in view the aforementioned judicial pronouncements
and the legal definition, when we look at the construction of
Section 11(1) of the POSH Act, the word ‘where’ is quite clearly
used in the context of a situation, rather than a place. In our
interpretation, Section 11(1) envisages three distinct situations or
contingencies, followed by how inquiry into a complaint is to be
carried out by the ICC or Local Committee (as the case may be):
29
(i) ‘Where’ (In case) the ‘respondent’ is an ‘employee’, the
ICC shall proceed to make inquiry into the complaint,
in accordance with the provisions of the service rules
applicable to the ‘respondent’;
(ii) ‘Where’ (In case) no such rules exist, ICC shall proceed
to make inquiry into the complaint, in such manner as
may be prescribed;
(iii) ‘Or’ (in case) of a domestic worker, the Local Committee
shall, if prima facie case exists, forward the complaint
to the police, within a period of seven days for
registering the case under Section 509 of the IPC and
any other relevant provisions of the said Code where
applicable.
42. In our view, the use of the word ‘where’ as it occurs in the
contingency (i) and (ii) as denoted above, clearly refers to two
different conditions precedent / situations, where contingency (i)
relates to a situation in case the ‘respondent’ is an ‘employee’
under the meaning as prescribed under the POSH Act , inquiry
must be made by the ICC in accordance with the service rules
applicable to him, and contingency (ii) relates to a situation in case
no such rules exist, it shall be inquired into by the ICC in such
30
manner as prescribed. The contingency (iii) is a different situation
altogether – in case the ‘respondent’ is a domestic worker, the Local
Committee shall, on taking a prima facie view about the existence
of a case against the ‘respondent’, forward the complaint to the
police.
43. It is pertinent to note that contingency (i) and contingency (iii)
as denoted above, operate in the form of ‘either -or’. If the
‘respondent’ is an employee, the inquiry shall be conducted by the
ICC either in accordance with the respondent’s service rules, or in
case there are no applicable service rules, in the manner as
prescribed. Thereafter, the word ‘or’ has been used, to lay down
what must be the procedure when the ‘respondent’ is a domestic
worker. The grammatical function of the word ‘where’ as appearing
in Section 11 of the POSH Act is that of a ‘conditional conjunction’
(similar to ‘in that case’ or ‘if’). It introduces a scenario,
contingency or condition and lays down the action which follows.
44. Section 11(1) essentially lays down what the ICC or the Local
Committee is supposed to do upon receiving a complaint from the
aggrieved woman. Use of the phrase ‘where the respondent is an
employee’ is essentially a procedural trigger, directing the ICC to
apply the service rules which are applicable to the ‘respondent’, it
31
is not a jurisdictional constraint limiting a particular ICC to hear
the complaint.
45. This interpretation of Section 11(1) is borne out of a plain
reading of the words used by the legislature in the said section. It
is pertinent to state that the principle as laid down in Balasinor
Nagrik Coop. Bank Ltd. (Supra) is squarely applicable to the
present case and the entire section has to be read as a whole.
When the section is read as a whole, it has been constructed in the
form of ‘where….and where….or….’, detailing three different
contingencies and the procedure to be followed in each
contingency. Merely the phrase ‘where the respondent is an
employee’ cannot be read in isolation without taking into view the
entire section, and all parts of the section must be read together to
find out a workable conclusion.
46. In view of the above, the inescapable conclusion, upon plain
reading of the text of Section 11(1) of the POSH Act is that the
argument advanced by the Appellant is liable to be rejected. As
discussed above, in case the ‘respondent’ is an ‘employee’, the ICC
is obligated to apply the service rules applicable to him, but the
use of the phrase ‘where the respondent is an employee’ does not
mean that the ICC constituted at the workplace of the aggrieved
32
woman cannot exercise jurisdiction. As such, the construction of
Section 11 is in the nature of a procedural section rather than one
that lays down jurisdictional restraints.
Whether the ‘respondent’ must be an employee of the same
workplace as the ‘aggrieved woman’?
47. That being said, the requirement of Section 11(1) as we have
concluded above, is that in case the ‘respondent’ is an ‘employee’,
the inquiry by the ICC must be in accordance with the service rules
applicable to him, if service rules do not exist, it shall be conducted
as may be prescribed, or if he is a domestic worker, the Local
Committee must forward the complaint to the police . The
definitions of the word ‘employee’ and ‘workplace’ as quoted above
in this judgement at their respective places are completely neutral,
in the sense that they do not suggest that the ‘respondent’ must
necessarily be an employee of the workplace where the aggrieved
woman works.
48. The word ‘respondent’ has been defined in Section 2(m) of the
POSH Act as ‘a person against whom the aggrieved woman has
made a complaint under Section 9’. It does not require the
‘respondent’ to be someone working at the same workplace as the
33
aggrieved woman, rather the exact words used are ‘a person’ which
can be any person against whom complaint has been made . The
word ‘employee’ as defined in Section 2(f) of the POSH Act – further
provides that it means a ‘person employed at a workplace…’. The
word ‘workplace’ itself which is defined in Section 2(o) of the POSH
Act, has been given a wide meaning, particularly in clause (v) of
Section 2(o), which posits that the word ‘workplace’ also includes
‘any place visited by the employee arising out of or during the
course of employment including transportation by the employer for
undertaking such journey’.
49. The expansive definitions of these words enable the ICC
constituted at the aggrieved woman’s workplace to exercise
jurisdiction over an employee of a different workplace. None of
these definitions provide that the ‘respondent’ must necessarily be
an employee of the same workplace where the aggrieved woman
works. Any person against whom a complaint is filed by the
aggrieved woman before the ICC constituted at her workplace
under Section 9, is a ‘respondent’ under the POSH Act and as per
the scheme of Section 11(1), if the ‘respondent’ is an ‘employee’,
his service rules shall apply and in the absence of service rules,
34
inquiry shall be conducted as prescribed, but the ‘respondent’
need not necessarily be an employee of the same ‘workplace’.
50. In this context, it was argued by the appellant that in view of
Section 19(h) of the POSH Act, the only remedy available to the
aggrieved woman when the perpetrator of sexual harassment is an
outsider (employee of a different workplace) is to register a
complaint under the IPC through the employer. We are unable to
agree with this contention, since Section 19(h) makes it a duty of
the employer to facilitate the initiation of action under the IPC if
the aggrieved woman so desires, it is not in derogation or exclusion
of the power to initiate proceedings under the POSH Act. Even
where the ‘respondent’ is not an employee anywhere, criminal
proceedings may be initiated and such initiation of criminal
proceedings must be facilitated by the employer.
Contextual Interpretation of provisions of the POSH Act
51. Even though we have held above that a plain textual reading
of Section 11(1) of the POSH Act conveys the clear meaning that it
creates no bar on the jurisdiction of ICC constituted at the
workplace of the aggrieved woman to inquire into a complaint
against a ‘respondent’ who is an employee of a different
35
‘workplace’, we also propose to discuss the interpretation of the
provisions of the POSH Act in light of its intent, purpose and
context, in line with the pronouncement of this Court in Eera
(Supra).
52. The long title of the POSH Act and its ‘Preamble’ are relevant
internal aid for the purpose of interpretation and are therefore
quoted herein:
“An Act to provide protection against sexual harassment of
women at workplace and for the prevention and redressal
of complaints of sexual harassment and for matters
connected therewith or incidental thereto.
WHEREAS sexual harassment results in violation of the
fundamental rights of a woman to equality under articles 14
and 15 of the Constitution of India and her right to life and
to live with dignity under article 21 of the Constitution and
right to practice any profession or to carry on any
occupation, trade or business with includes a right to a safe
environment free from sexual harassment;
AND WHEREAS the protection against sexual harassment
and the right to work with dignity are universally
recognised human rights by international conventions and
instruments such as Convention on the Elimination of all
Forms of Discrimination against Women, which has been
ratified on the 25th June,1993 by the Government of India;
AND WHEREAS it is expedient to make provisions for giving
effect to the said Convention for protection of women against
sexual harassment at workplace.”
53. The POSH Act was enacted by the legislature, recognizing the
legislative void which was highlighted by this Court in its seminal
36
judgment in Vishaka (Supra). Its intent is to uphold women’s right
to equality under Articles 14 and 15 and right to a dignified life
under Article 21 of the Constitution of India. The POSH Act does
not merely punish acts of sexual harassment, but actively imposes
a legal duty on employers to prohibit and prevent harassment, it
ensures that the women in each workplace have open access to a
mechanism for redressal of complaints of sexual harassment in
the form of ICC. It aims to bring about safety and accountability in
the workplace in order to enable women to pursue their career
without the fear of a hostile environment. It is thus seen that the
POSH Act is a social welfare legislation and it must be interpreted
as thus.
54. Keeping in mind the object behind the enactment of the POSH
Act, if the aggrieved woman had to approach the ICC constituted
at the workplace of the ‘respondent’ for every third-party incident,
it would fall short of the aforesaid object. The ICC at the workplace
of the ‘respondent’ would be tasked with inquiring into an incident
that may or may not have occurred on their employer's premises
or in relation to their employer's work environment. A narrow
interpretation of provisions of the POSH Act, in order to hold that
only the ICC of the workplace of the ‘respondent’ has jurisdiction
37
to inquire into complaints against him, irrespective of where the
workplace of the aggrieved woman is or where the alleged act of
sexual harassment took place, would undermine the POSH Act’s
remedial social welfare intent since it would create significant
practical hurdles for the aggrieved woman.
55. Such an interpretation would beget several procedural and
psychological barriers for the aggrieved woman. The aggrieved
woman, who has allegedly suffered an act of sexual harassment,
would be compelled to file a complaint before the ICC constituted
at the workplace of the ‘respondent’. It would create a situation
where the aggrieved woman would have to appear before the ICC
at an alien workplace in order to pursue her remedy in law.
56. Even more importantly, the POSH Act, by introducing Section
2(o)(v) which enlarged the scope of ‘workplace’ to include any place
visited by the employee during the course of employment,
including during transportation, has expanded the scope of
‘workplace’ manifold. In such a case, the intent of the legislature
was clearly to prohibit acts of sexual harassment at any place
incidental to work and employment, at any place visited by the
employees during the course of employment. If we were to interpret
the provisions of the POSH Act to hold that only the ICC
38
constituted at the workplace of the ‘respondent’ has the
jurisdiction to entertain complaints and not the ICC constituted at
the aggrieved woman’s workplace, it would defeat the purpose of
such an expanded scope. It will also lead to an absurd situation
where it would be incumbent upon the aggrieved woman to pursue
her remedies, not at her own workplace, but at some other
workplace, irrespective of the distance. It would create a further
barrier preventing the aggrieved woman from seeking her remedies
in law.
57. The taboo around sexual harassment at the workplace and
the fear of stigma which may be attached to the aggrieved woman
as a consequence of a complaint regarding sexual harassment
already poses a massive psychological barrier for the aggrieved
women which actively dissuades them from pursuing their remedy
in law. In such view of the matter also, the intent of the legislature
behind giving such a wide meaning to the word ‘workplace’ to go
beyond the bounds of the traditional meaning implying location of
the office, cannot be brushed aside by narrow construction of other
provisions of the POSH Act. It is for the aforementioned reasons
that we are constrained to reject the argument of the Appellant and
answer Issues 1 and 2 in the above terms.
39
ANALYSIS OF ISSUE III
58. It has been vehemently urged before us by the Appellant that
another reason why only the ICC of the Appellant’s department has
jurisdiction to entertain a complaint under Section 9 of the POSH
Act is that it is only his department which can take disciplinary
action against him, and so for the inquiry carried out by the ICC
and its outcome to have any sanctity, the inquiry must be
conducted by the ICC constituted under the aegis of the
Appellant’s employer.
59. While at first blush the argument might seem persuasive, but
we are not impressed, since it is not in line with the scheme of the
POSH Act. The core issue with this argument is that it fails to
differentiate the authority to inquire into the facts and the
authority to enforce or act on the findings. While the ICC
constituted at the workplace of the aggrieved woman or the
employer may not have the authority to impose a penalty /
punishment on the ‘respondent’ as a consequence of the
proceedings under the POSH Act, its findings can certainly be
acted upon by the employer of the ‘respondent’. Such is the
construction and scheme of Section 13 of the POSH Act as quoted
above. Under Section 13, the inquiry report of the ICC along with
40
its recommendations must be sent to the ‘employer’ and it is
obligated to act upon the recommendations within sixty days. It is
merely the factual inquiry which is to be conducted by the ICC
constituted at the workplace of the aggrieved woman. It cannot be
said, by any stretch of imagination, that the ICC itself is to take
disciplinary action against the ‘respondent’ in case the report
suggests that the allegation has been proved. As intended, the ICC
constituted at the aggrieved woman’s workplace shall send its
recommendations to the ‘employer’ of the ‘respondent’ for further
necessary action, i.e., initiation of disciplinary proceedings as per
service rules, or to take action as prescribed. Section 13 does not
state therein that the employer of the aggrieved woman and the
‘respondent’ must be one and the same. If a factual conclusion is
reached by the ICC constituted at one department, it can very well
be acted on by the employer of the ‘respondent’, even if it is a
different department. It goes without saying that the sanctity of the
report of the ICC is statutorily mandated and all employers are
required to act upon the said report. Even though the ICC is
constituted under a different department, it has a statutory
backing in its constitution and functioning. It is also pertinent to
mention here that if the recommendations of the ICC are brushed
41
aside and not acted on by the employer, a right to appeal has been
provided under Section 18 of the POSH Act.
60. In the present case, the Appellant, who is the ‘respondent’
under the meaning as prescribed in the POSH Act and the
aggrieved woman are both Central Government employees,
belonging to different departments. As discussed above, during the
operation of the guidelines as laid down by this Court in Visakha
(Supra) and prior to the enactment of the POSH Act, this Court
had directed in Medha Kotwal Lele (Supra) that the Complaints
Committee under the guidelines shall be deemed to be an inquiry
authority for the purposes of the CCS Conduct Rules, 1964. In
pursuance of the same, the Central Civil Services (Classification,
Control and Appeal) Rules, 1965 (hereinafter referred to as “CCS
CCA Rules, 1965”) also came to be amended by inserting a proviso
below sub-rule 2 of Rule 14 relating to treatment of the Complaint
Committee as Inquiring Authority . This was notified vide
Notification No. 11012/5/2001 -Estt.A dated 01.07.2004
published in Gazette of India vide G.S.R. No. 225 dated
10.07.2004.
61. Sub-rule 2 of Rule 14 of the CCS CCA Rules, 1965 and the
proviso thereto is relevant and is therefore quoted as under:
42
“(2) Whenever the disciplinary authority is of the opinion
that there are grounds for inquiring into the truth of any
imputation of misconduct or misbehaviour against a
Government servant, it may itself inquire into, or appoint
under this rule or under the provisions of the Public
Servants(Inquiries) Act, 1850, as the case may be, an
authority to inquire into the truth thereof.
Provided that where there is a complaint of sexual
harassment within the meaning of rule 3 C of the Central
Civil Services (Conduct) Rules, 1964, the Complaints
Committee established in each Ministry or Department or
Office for inquiring into such complaints, shall be deemed to
be the inquiring authority appointed by the disciplinary
authority for the purpose of these rules and the Complaints
Committee shall hold, if separate procedure has not been
prescribed for the Complaints Committee for holding the
inquiry into the complaints of sexual harassment, the
inquiry as far as practicable in accordance with the
procedure laid down in these rules.”
62. In order to further clarify the role of the ICC in conducting
inquiry, the Government of India’s Ministry of Personnel, Public
Grievances and Pensions, Department of Personnel and Training
issued Office Memorandum being F No. 11013/2/2014 -Estt (A-III)
dated 16.07.2015 (hereinafter referred to as “OM dated
16.07.2015”), after the POSH Act had come into force, with the
subject ‘Steps for conducting inquiry in case of allegation of Sexual
Harassment’, which is also of much relevance. The said OM lays
down the dual role of the ICC / Complaints Committee and
envisages a two-step inquiry into an allegation of sexual
43
harassment. Paragraphs 7 and 8 of the OM dated 16.07.2015
provide for the investigative role played by the ICC as follows:
“Need for investigation
7. The Complaints Committees may act on complaints of
sexual harassment when they receive them directly or
through administrative authorities etc, or when they take
cognizance of the same suo-moto. As per Section 9(1) of the
Act, the aggrieved woman or complainant is required to
make a complaint within three months of the incident and
in case there has been a series of incidents, three months of
the last incident. The Complaints Committee may however
extend the time limit for reasons to be recorded in writing, if
it is satisfied that the circumstances were such which
prevented the complainant from filing a complaint within the
stipulated period.
8. As mentioned above, the complaints of sexual
harassment are required to be handled by Complaints
Committee. On receipt of a complaint, facts of the allegation
are required to be verified. This is called preliminary
enquiry/fact finding enquiry or investigation. The
Complaints Committee conducts the investigation. They
may then try to ascertain the truth of the allegations by
collecting the documentary evidence as well as recording
statements of any possible witnesses including the
complainant. If it becomes necessary to issue a Charge
Sheet, disciplinary authority relies on the investigation for
drafting the imputations, as well as for evidence by which
the charges are to be proved. Therefore this is a very
important part of the investigation.”
63. Paragraphs 9, 10 and 11 of the OM dated 16.07.2015 clarify
the dual role of the ICC as follows:
“Dual Role
44
9. In the light of the Proviso to the Rule 14 (2) mentioned
above, the Complaints Committee would normally be
involved at two stages. The first stage is investigation
already discussed in the preceding para. The second stage
is when they act as Inquiring Authority. It is necessary that
the two roles are clearly understood and the inquiry is
conducted as far as practicable as per Rule 14 of CCS (CCA)
Rules, 1965. Failure to observe the procedure may result in
the inquiry getting vitiated.
10. As the Complaints Committees also act as Inquiring
Authority in terms of Rule 14(2) mentioned above, care has
to be taken that at the investigation stage that impartiality
is maintained. Any failure on this account may invite
allegations of bias when conducting the inquiry and may
result in the inquiry getting vitiated. As per the instructions,
when allegations of bias are received against an Inquiring
Authority, such Inquiring Authority is required to stay the
inquiry till the Disciplinary Authority takes a decision on the
allegations of bias. Further, if allegations of bias are
established against one member of the Committee on this
basis, that Committee may not be allowed to conduct the
inquiry.
11. In view of the above, the Complaints Committee when
investigating the allegations should make recommendations
on whether there is a prima facie substance in the
allegations which calls for conducting a formal inquiry. They
should avoid making any judgmental recommendations or
expressing views which may be construed to have
prejudiced their views while conducting such inquiry.”
64. After the fact-finding inquiry is conducted by the ICC,
paragraphs 12, 13 and 14 of the OM dated 16.07.2015 provide for
the power of the Disciplinary Authority to examine the report and
decide as to whether formal charge sheet needs to be issued or not,
45
and at which stage an inquiry is to be conducted. The said
paragraphs of the OM are quoted herein:
“Decision to issue Charge sheet, and conducting
Inquiry
12. On receipt of the Investigation Report, the Disciplinary
Authority should examine the report with a view to see as
to whether a formal Charge Sheet needs to be issued to the
Charged Officer. As per Rule 14(3), Charge Sheet is to be
drawn by or on behalf of the Disciplinary Authority. In case
the Disciplinary Authority decides on that course, the
Charged Officer should be given an opportunity of replying
to the Charge sheet. As per Rule 14(5), a decision on
conducting the inquiry has to be taken after consideration
of the reply of the charged officer.
13. If the Charged Officer admits the charges clearly and
unconditionally, there will be no need for a formal inquiry
against him and further action may be taken as per Rule 15
of the CCS(CCA) Rules.
The Inquiry-stages
14. In case the Charged Officer denies the charges and his
reply is not convincing, the Charge sheet along with his
reply may be sent to the Complaints Committee for formal
inquiry, and documents mentioned in Rule 14 (6) will be
forwarded to the Complaints Committee. As per Section
11(3) of the Act, for the purpose of making an inquiry, the
Complaints Committee shall have the same powers as are
vested in a civil court under the Code of Civil Procedure,
1908when trying a suit in respect of the following matters,
namely:—
(a) summoning and enforcing the attendance of any
person and examining him on oath;
(b) requiring the discovery and production of documents;
and
(c) any other matter which may be prescribed.”
46
65. It is clear from OM dated 16.07.2015 of the Central
Government that in respect of Central Government employees,
inquiry into a complaint of sexual harassment is to be conducted
in two distinct stages. Firstly, the ICC is to conduct a fact-finding
inquiry or preliminary inquiry, investigating the veracity of the
complaint under the POSH Act . Thereafter, the report or
recommendation of the ICC is to be sent to the Disciplinary
Authority, which shall examine the report and decide as to whether
a formal chargesheet must be issued to ‘respondent’ / employee.
Upon issuance of such a formal chargesheet by the Disciplinary
Authority against the employee, comes the second stage, where the
ICC is required to act as the inquiring authority in the formal
disciplinary inquiry under the CCS CCA Rules, 1965 in order to
decide the disciplinary action which may or may not be imposed
upon the employee.
66. It goes without saying that the OM dated 16.07.2015 does
not specifically address the situation which has arisen in the
present case. However, under the scheme of the POSH Act and
particularly looking to Section 13 of the POSH Act, nothing
prevents the ICC constituted at the workplace of the aggrieved
woman from carrying out the preliminary / fact-finding inquiry at
47
the first stage. After completion of the fact-finding inquiry, the ICC
constituted at the workplace of the aggrieved woman can send its
recommendation and report to the employer of the ‘respondent’.
Upon receiving the findings and recommendations of the ICC
constituted at the aggrieved woman’s workplace, the employer of
the ‘respondent’ and the Disciplinary Authority, upon making a
decision that disciplinary proceedings are warranted, can then
issue a chargesheet to the ‘respondent’ and initiate disciplinary
proceedings against him. In this inquiry, the ICC constituted at the
workplace of the ‘respondent’ may conduct the second stage formal
inquiry, acting as the inquiring authority for the purpose of the
disciplinary proceedings. As such, the OM dated 16.07.2015, in
respect of employees of the Government of India treats inquiry into
complaints of sexual harassment as a two-stage process where
there is a preliminary / fact-finding inquiry at first and then a
disciplinary proceedings based on the findings of the preliminary
/ fact-finding inquiry.
67. Much emphasis has been laid by the learned Senior Counsel
appearing for the appellant on the fact that disciplinary action
cannot be taken against him on the basis of the recommendations
of an inquiry authority who is not from the same department.
48
However, any punishment which is to be imposed upon the errant
employee after completion of the disciplinary proceedings is to be
imposed by the ‘employer’ or disciplinary authority of the
‘respondent’, based upon the findings which come through in the
second-stage disciplinary proceedings. The fact that ultimately
disciplinary action against the ‘respondent’ has to be taken by his
employer and his department cannot be an impediment for the ICC
constituted at the workplace of the aggrieved woman to take up
the fact-finding inquiry under Section 11 of the POSH Act when
read with the OM dated 16.07.2015. In this context, particular
reference must be made to Section 13(3)(i) of the POSH Act quoted
above, which lays down that the ICC , upon reaching the
conclusion that the allegations against the ‘respondent’ are proved,
shall recommend to the employer to take disciplinary action for
sexual harassment as a misconduct in accordance with the
provisions of the service rules of the ‘respondent’.
68. In view of the findings as recorded above in respect of Issue
3, we find that the ICC proceedings instituted in the aggrieved
woman’s department can be considered the first-stage of inquiry
which carries out a preliminary / fact-finding inquiry, after which
the report of the ICC may be sent to the employer / department of
49
the ‘respondent’. Depending on the findings of the ICC (at the
aggrieved woman’s workplace) as the first stage, the ‘employer’ may
then take a decision to initiate disciplinary proceedings under the
applicable service rules and in such disciplinary proceedings, the
ICC constituted at the workplace of the ‘respondent’ shall be the
inquiring authority. While conducting the disciplinary proceedings
against the ‘respondent’, the ICC at the workplace of the
‘respondent’ shall have reference to the report of the fact-finding
inquiry by the ICC constituted at the workplace of the aggrieved
woman. Issue 3 is answered as such.
ISSUE IV
69. The present appeal originates out of the notice / order dated
13.06.2023 directing the appellant to appear before the ICC
constituted at the workplace of the aggrieved woman after
institution of proceedings and filing of complaint by the aggrieved
woman under Section 9 of the POSH Act. It is a challenge which
was brought by the appellant at a preliminary stage. While issuing
notice vide order dated 18.07.2023 in the present appeal, it was
directed by this Court that inquiry may continue but the final
outcome of the inquiry shall be kept in a sealed cover. As
mentioned above, we have been supplied with a copy of the report
50
of the ICC in sealed cover and we have perused the same. We are
not divulging any of the findings in the report, since it may form
the basis of a disciplinary proceedings against the appellant if the
same is initiated by his employer.
70. A concern was raised before us that since the appellant is an
employee of a different department, the ICC at the aggrieved
woman’s workplace will not be privy to details about the
employee’s scope of duty, work and service records, etc. However,
from a bare perusal of the report, we find that the ICC at the
aggrieved woman’s workplace has communicated with the
employer of the ‘respondent’, i.e., his Department and sought
information with respect to the incident and scope of duty of the
‘respondent’, which the Department has provided. The duty of the
employer to co-operate in the ICC proceedings is a statutory duty
of the employer, which it has duly complied with. Apart from this,
the ‘respondent’ has not been able to show that any prejudice has
been caused to him due to the proceedings being carried out by
the ICC constituted at the workplace of the aggrieved woman. In
any case, the right and remedy of the aggrieved woman to bring a
complaint under the POSH Act must be juxtaposed and balanced
with the sacrosanct right of the ‘respondent’ to be heard and for
51
application of mind before imposing of any punishment. As we
have held above, after the conduct of a fact-finding / preliminary
inquiry by the ICC constituted at the workplace of the aggrieved
woman under the POSH Act, its recommendations shall be sent to
the Department being the ‘employer’ of the ‘respondent’, at which
stage the employer will take a decision about initiation of
disciplinary proceedings under the provisions of the CCS CCA
Rules, 1965. We are also cognizant of the fact that there might be
administrative lethargy resulting in delay of the ICC proceedings if
the workplace of the ‘respondent’ fails to co-operate with the
factual inquiry being conducted by the ICC at the aggrieved
woman’s workplace, even though in the facts of this case, the
employer has duly complied with requests from the ag grieved
woman’s workplace. However, in that respect, it will suffice to say
that cooperating with the ICC in conduct of inquiry is a statutory
duty of the employer under Section 19(f) of the POSH Act, which
shall be complied with.
71. Since the report of the ICC at the workplace of the aggrieved
woman is in the nature of a fact-finding / preliminary inquiry,
which may form the basis of a subsequent disciplinary proceedings
against the appellant, we are restraining from making any
52
observations or remarks, so as to permit the appellant to raise all
contentions in the disciplinary proceedings except the question of
jurisdiction or validity of the proceedings by the ICC constituted at
the workplace of the aggrieved woman. As such, the Issue No. IV
is answered accordingly.
CONCLUSION
72. In the present case, considering the wide definition of the
word ‘workplace’ under the POSH Act, particularly as contained in
Section 2(o)(v), if we were to accept the contentions of the
appellant, the said interpretation would run contrary to the object
of the POSH Act and its intent as a social welfare legislation. In the
interest of clarity and easy comprehension, the following are our
conclusions in terms of the above discussion:
(i) The phrase ‘where the respondent is an employee’ as
contained in Section 11 of the POSH Act , cannot be
interpreted to mean that ICC proceedings against a
‘respondent’ may only be instituted before the ICC
constituted at the workplace of the ‘respondent’;
(ii) Such a restrictive interpretation of the POSH Act will run
contrary to the scheme of the Act, specifically in light of the
53
all-encompassing and wide definition which has been given
to the term ‘workplace’ in Section 2(o) of the POSH Act,
particularly in light of Section 2(o)(v) which expands the
scope of ‘workplace’ to include any place visited by the
employee ‘arising out of or during the course of
employment’;
(iii) Under Section 13 of the POSH Act, the recommendations
and report of the ICC are to be sent to the ‘employer’ which
shall then take a decision with respect to initiation of
disciplinary action. In light of the OM dated 16.07.2025,
the ICC has a dual-role – to conduct the preliminary / fact-
finding inquiry under the POSH Act and to act as the
inquiry authority in the formal disciplinary proceedings
under the CCS CCA Rules, 1965 as discussed, since
nothing prevents the ICC constituted at the Department of
the aggrieved woman from conducting the preliminary /
fact-finding inquiry and upon receiving the report of the
said ICC, if the employer initiates disciplinary proceedings,
the ICC constituted at the Department of the ‘respondent’
shall act as the inquiry authority in the disciplinary
proceedings.
54
(iv) In case the ICC constituted at the aggrieved woman’s
workplace is conducting a fact-finding inquiry under the
POSH Act, the employer of the ‘respondent’, even if it is a
different department, must abide its duties under Section
19(f) of the POSH Act to swiftly cooperate and make
available information upon a request by the ICC of the
aggrieved woman’s workplace.
73. In light of the above conclusions and the answers to the
issues as framed, the present appeal is dismissed. The report of
the ICC constituted at the aggrieved woman’s workplace shall be
transmitted to the Department of the appellant forthwith, which
shall take further action as necessary under the POSH Act
following the procedure as prescribed in the relevant service rules.
74. All pending applications shall stand disposed of.
….…………….…………J.
(J.K. MAHESHWARI)
…………………………..J.
(VIJAY BISHNOI)
New Delhi;
December 10, 2025.
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