As per case facts, Respondent No. 1, an employee with prior misconduct, was accused of sexual harassment in 2011. A domestic enquiry under Model Standing Orders found him guilty, leading ...
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2297 OF 2026
GlaxoSmithKline Pharmaceutics Limited,
Plot No.A-10, M.I.D.C., Ambad,
Nashik – 422 010
having registered office at 252,
Dr. Annie Besant Road, Worli,
Mumbai 400 030… Petitioner
Vs.
1.Suhas Shankar Pagare,
residing at Sushil Heights, Flat No.8,
Near IDEA Show Room, College Road,
Parijat Nagar, Nashik 422 005
2.Glaxo Laboratories Employees Union,
Nashik, C/o. Pradip Bhimaji Shelke,
4 Diploma Apartment, Datenagar,
Opp. Asaram Bapu Ashram,
Gangapur Road, Nashik 422 010.… Respondents
Mr. Kiran Bapat, Senior Advocate with Mr. P.N.
Salgaonkar, & Mr. Pratik Salgaonkar i/by Salgaonkar &
Co., for the petitioner.
Mr. K.W. Thakare with Mr. G.R. Naik, Mr. Uresh U.
Sawant, and Ms. Rutika Naik i/by M/s. G.R. Naik &
Co., for the respondent No.1
CORAM :AMIT BORKAR, J.
RESERVED ON :APRIL 2, 2026.
PRONOUNCED ON:APRIL 9, 2026
1
ATUL
GANESH
KULKARNI
Digitally signed
by ATUL GANESH
KULKARNI
Date: 2026.04.09
11:40:42 +0530
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JUDGMENT:
1.By the present writ petition filed under Articles 226 and 227
of the Constitution of India, the petitioner challenges the Part I
Award dated 9 December 2025 passed by the Industrial Court at
Nashik in Reference (IT) No. 3 of 2013, whereby it has been held
that the departmental enquiry was not conducted in accordance
with the mandate of the judgment in
Vishaka v. State of Rajasthan,
(1997) 6 SCC 241, and further that the enquiry was neither legal
nor fair, and that the findings recorded by the Enquiry Officer are
perverse.
2.The facts leading to the filing of the present writ petition, as
set out by the petitioner, are that respondent No. 1 was employed
with the petitioner since 14 May 1990 in the production
department at its Nashik establishment. It is stated that respondent
No. 1 had a checkered service record, having been issued warnings
on eight occasions, suspended on seventeen occasions, and
subjected to stoppage of increments thrice, on account of alleged
misconduct including unsatisfactory performance, indiscipline,
misbehaviour with the management, and habitual absenteeism. It
is further stated that in the year 2010, respondent No. 1 was
elected as Vice President of respondent No. 2 Union. It is the case
of the petitioner that in the year 2011, a lady employee working in
the ointment department had proceeded on medical leave due to
certain ailments, and upon resuming duties on 7 February 2011,
she was informed that her department had been changed at the
instance of the respondents. In order to discuss the said change,
the concerned employee approached respondent No. 1 at the office
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of respondent No. 2. It is alleged that instead of addressing her
grievance, respondent No. 1 subjected her to sexual harassment by
demanding sexual favours and further assaulted her physically.
The said employee lodged a complaint dated 19 February 2011
with the petitioner in that regard.
3.Upon receipt of the said complaint, the petitioner took
cognizance of the allegations and conducted a preliminary inquiry,
following which a Show Cause Notice dated 1 April 2011 came to
be issued to respondent No. 1 under the provisions of the Bombay
Industrial Employment (Standing Orders) Rules, 1959. Respondent
No. 1 submitted a reply on the same date seeking a period of ten
days to respond to the allegations contained in the Show Cause
Notice. Thereafter, respondent No. 1 addressed a further
communication dated 8 April 2011 requesting for a copy of the
complaint made by the lady employee. Upon consideration of the
reply dated 28 April 2011, which was found to be unsatisfactory,
the petitioner issued a Charge Sheet dated 8 June 2011 alleging
misconduct and informing respondent No. 1 of the initiation of a
domestic enquiry in accordance with the applicable Model
Standing Orders. Respondent No. 1 submitted his reply dated 14
June 2011 to the Charge Sheet, calling upon the petitioner to take
action against the complainant.
4.The petitioner thereafter appointed Dr. U.S. Kharote as
Enquiry Officer to conduct the domestic enquiry into the
allegations of sexual misconduct against respondent No. 1. The
enquiry proceedings were conducted between 24 June 2011 and
18 November 2011. It is stated that the proceedings were
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conducted in Marathi, though recorded in English. Respondent No.
1 was permitted to be represented by one Mr. Prashant Dev and
was afforded an opportunity to lead evidence and examine
witnesses in his defence. Upon conclusion of the enquiry, the
Enquiry Officer submitted his report dated 29 December 2011
holding respondent No. 1 guilty of the charges levelled in the
Charge Sheet.
5.A copy of the enquiry report was furnished to respondent
No. 1 by the petitioner vide communication dated 17 July 2012. It
is further stated that in October 2012, respondent No. 1 filed
Complaint (ULP) No. 46 of 2012 before the Labour Court at
Nashik under the provisions of the MRTU and PULP Act, alleging
victimization on account of his position in the Union. According to
the petitioner, the said complaint was filed only with a view to
delay the termination proceedings. It is further the case of the
petitioner that apart from the domestic enquiry, a preliminary
enquiry and an additional enquiry through a non-governmental
organization were also conducted, though not mandatorily
required. It is stated that the records of such enquiry could not be
produced as the same were not traceable due to renovation work.
However, it is contended that respondent No. 1 had participated in
such enquiry, which fact stands admitted by him. It is further
contended that the Enquiry Officer has not relied upon the
findings of the NGO enquiry and has confined his consideration
strictly to the charges contained in the Charge Sheet dated 8 June
2011. It is also asserted that the dismissal letter indicates that a
copy of the NGO report was furnished to respondent No. 1, and
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that there was no specific pleading in the Statement of Claim
alleging non-supply of such report. The petitioner has also pointed
out that respondent No. 1 filed an application for production of
documents seeking the NGO report only in the year 2023. It is
further stated that respondent No. 1 did not obtain any interim or
final relief in the proceedings before the Labour Court. The
petitioner, therefore, proceeded to consider the findings recorded
in the enquiry report dated 29 December 2011, and having regard
to the gravity of the misconduct alleged, issued an order dated 7
December 2012 terminating the services of respondent No. 1 with
immediate effect.
6.Thereafter, respondent No. 1 withdrew Complaint (ULP) No.
46 of 2012, which withdrawal was permitted by the Labour Court
by order dated 9 January 2013. Subsequently, an industrial dispute
was raised challenging the termination, which came to be referred
by the appropriate Government to the Industrial Tribunal as
Reference (IT) No. 3 of 2013. Respondent No. 1 filed his
Statement of Claim seeking reinstatement with continuity of
service and full back wages. The petitioner appeared before the
Tribunal and filed its Written Statement denying the allegations
and placing its case on record. The Tribunal framed issues and
both parties adduced oral as well as documentary evidence.
7.Upon consideration of the material on record and after
hearing the parties, the Industrial Tribunal passed the impugned
Part I Award dated 9 December 2025 holding that the domestic
enquiry conducted against respondent No. 1 was not fair, legal, or
in compliance with the principles of natural justice and the
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mandate of the
Vishaka judgment. The Tribunal further held that
the findings recorded by the Enquiry Officer were perverse and
granted liberty to the petitioner to lead evidence before the
Tribunal to establish the charges of misconduct. Aggrieved thereby,
the petitioner has approached this Court by way of the present writ
petition.8.Mr. Bapat, learned Senior Advocate appearing for the
petitioner, submits that the Industrial Tribunal has committed a
grave error in law in vitiating the domestic enquiry on the ground
that the enquiry, though conducted in accordance with the Model
Standing Orders, did not adhere to the guidelines laid down in the
judgment of the Supreme Court in
Vishaka on the issue of sexual
harassment. It is contended that once the Supreme Court had
clarified that such guidelines would operate only till suitable
legislation is enacted, and where statutory provisions in the nature
of Model Standing Orders are already in place governing
disciplinary proceedings, there was no requirement to constitute a
separate Complaints Committee as contemplated under the
Vishaka guidelines. It is therefore submitted that the finding of the
Tribunal vitiating the enquiry on this ground is legally
unsustainable, and the impugned Award deserves to be quashed
and set aside.
9.It is further submitted that the Supreme Court in the case of
Medha Kotwal Lele has recognized that the State of Maharashtra
had amended its service rules so as to include sexual harassment
as a misconduct. It is contended that the judgment in
Vishaka
clearly lays down that the guidelines and procedure prescribed
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therein are to operate only in the absence of legislation governing
the field. Therefore, where the Model Standing Orders provide a
mechanism for dealing with misconduct, including sexual
harassment, the employer is required to proceed in accordance
with such statutory framework. It is submitted that the Tribunal
has committed a patent error of law in holding that the petitioner
ought to have followed the procedure under the Central Standing
Orders and not the Model Standing Orders. According to the
petitioner, this finding runs contrary to the law declared by the
Supreme Court and is liable to be interfered with.
10.It is further contended that the Tribunal has failed to
examine the core issue, as to whether the domestic enquiry was
conducted in a fair and proper manner and whether the findings
recorded by the Enquiry Officer were perverse. It is submitted that
there is no discussion or finding in the Award to indicate any
breach of principles of natural justice. It is further submitted that
the Tribunal has not independently assessed the evidence led in
the enquiry proceedings. According to the petitioner, the record of
the enquiry clearly establishes that the charges of sexual
harassment against respondent No. 1 stood proved. However, the
Tribunal has declared the enquiry to be vitiated solely on the
ground of non-compliance with the Central Standing Orders,
without addressing the merits of the findings. It is further
contended that having held the enquiry to be vitiated, the Tribunal
has permitted the petitioner to lead evidence before it to prove the
misconduct, which reflects non-application of mind. It is submitted
that once the enquiry conducted under the Model Standing Orders
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had established the misconduct, the direction to re-prove the same
before the Tribunal is inconsistent and renders the reasoning
unsustainable in law. In support of the aforesaid submissions,
learned Senior Advocate has placed reliance on the judgment of
the Supreme Court in
Vishaka v. State of Rajasthan, (1997) 6 SCC
241.
11.Per contra, Mr. Thakare, learned Advocate appearing for
respondent No. 1, submits that in the absence of enacted
legislation governing sexual harassment at the workplace, the
Supreme Court in Vishaka had laid down comprehensive
guidelines and norms to be followed by all employers. It is
submitted that the said guidelines were issued in exercise of
powers under Article 32 of the Constitution for enforcement of
fundamental rights and were expressly declared to be binding
under Article 141 of the Constitution of India upon all courts and
authorities. It is further submitted that the enactment of the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 came into force only with effect from 9
December 2013. Until such enactment, the field was occupied by
the guidelines laid down in
Vishaka, as supplemented by
subsequent directions dated 26 April 2004 and 17 January 2006,
which specifically required constitution of a Complaints Committee
to act as an inquiry authority in matters of sexual harassment. It is
submitted that directions were also issued for appropriate
amendments in the Industrial Employment (Standing Orders)
Rules, including those applicable in the State of Maharashtra. It is
therefore contended that until 9 December 2013, the
Vishaka
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guidelines had full force of law and were binding upon all
establishments, including those governed by Standing Orders.
12.It is further submitted that a Division Bench of this Court in
Arati Durgaram Gavandi v. Managing Director, Tata Metaliks Ltd .
has categorically held that every employer is bound to comply with
the mandate of the Supreme Court in
Vishaka, and that
appointment of an Enquiry Officer alone would not constitute
compliance unless a duly constituted Complaints Committee, as
envisaged in the said judgment, is established. It has been held
that failure to constitute such a Complaints Committee amounts to
a breach of the law declared by the Supreme Court. It is, therefore,
submitted that the said judgment of the Division Bench is binding
and cannot be disregarded by a Single Judge. It is contended that
a coordinate Bench cannot take a contrary view or dilute the ratio
laid down in
Arati Durgaram Gavandi, and the Tribunal was
justified in following the binding precedent.
REASONS AND ANALYSIS:
13.I have given anxious consideration to the rival submissions
and to the material placed before the Court. The petitioner
contends that the Industrial Tribunal has gone wrong in law by
holding the domestic enquiry illegal merely because a separate
Complaints Committee was not constituted in the exact form
spoken of in Vishaka. The respondent, on the other hand, contends
that Vishaka was the law of the land, that it occupied the field till
the coming into force of the POSH Act, and that therefore the
employer could not bypass that regime and proceed only under the
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Model Standing Orders.
Nature of Vishaka Guidelines:
14.The starting point has to be the judgment in Vishaka,
because without understanding that decision, the controversy
cannot be resolved. At the time when that judgment was delivered,
there was absence of any proper law dealing with sexual
harassment at the workplace. The Supreme Court itself took note
of this gap and felt that such a situation cannot continue, because
it directly affects dignity, safety, and equality of women. Therefore,
the Court stepped in and framed guidelines. This was because
there was immediate need to protect rights till Parliament acts. It is
important to understand that the Court clearly said that they will
be binding. This was done by using Article 141 of the Constitution
which means whatever law Supreme Court declares becomes
binding on all courts and authorities. So even though there was no
statute, the guidelines operated like law. But at the same time, the
Court clearly said that these guidelines will operate only till a
legislation is enacted. So the intention was temporary filling of
gap.
15.Another very important aspect is that the Court did not apply
single method for all kinds of employers. For government and
public authorities, it directed that service rules should be amended
to include sexual harassment as misconduct and provide proper
procedure. For private establishments, the Court pointed towards
the Standing Orders system.
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16.The next issue which requires careful consideration is what is
meant by the expression “legislation” in the context of labour law
and whether Standing Orders when amended to include provisions
relating to sexual harassment can be treated as having the force of
such legislation. This question is important because at first sight
one may think that legislation means only an Act passed by
Parliament. But in labour law the meaning of “law” and
“legislation” has been understood in a broader sense. It is well
settled that Standing Orders once they are certified under the
provisions of the Industrial Employment (Standing Orders) Act do
not remain mere private terms between employer and employee.
They do not remain like a contract which parties can change at
will. After certification, they acquire a binding character. Both sides
are required to follow them strictly. In fact, courts have repeatedly
held that such Standing Orders have statutory force. This means
they operate like law within the establishment. The employer
cannot act contrary to them, and the employee also cannot ignore
them. This position has been consistently recognized, and
therefore Standing Orders are treated as a framework governing
service conditions. Further it is also an accepted principle that law
is not confined only to what Parliament directly enacts. When a
statute gives power to the Government to make rules or
amendments and such power is exercised then those rules also
have the force of law. This is known as delegated legislation. It is
called so because Parliament delegates some power to make
detailed provisions. Once such rules are made under that authority,
they are not mere administrative instructions. They are binding
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and enforceable. Courts treat them as part of statutory law.
Applying this principle if the appropriate Government amends the
Model Standing Orders by including provisions relating to sexual
harassment, such as defining misconduct, laying down procedure,
and providing mechanism for inquiry, then such amendment
becomes part of the statutory scheme. It is made under authority
given by law and, therefore, it binds all establishments to which
those Standing Orders apply. The employer must follow it.
Therefore, when such provisions are included in Standing Orders
they carry legal force. They regulate conduct, define misconduct
and provide consequences. In that sense they can properly be
understood as “legislation” though not in the strict sense of a Act
of Parliament. They fall within the category of delegated
legislation. They operate as law within their field. Thus, inclusion
of sexual harassment provisions in Model Standing Orders is a
legally recognized method of regulating such conduct within the
workplace.
17.The expression “occupy the field” has to be understood
properly because if it is taken in a technical way, then the real
meaning in the present context may get lost. In constitutional law
this phrase is usually used to say that when a law is made by a
competent legislature on a subject, and it covers that subject fully
then no other law can operate in a conflicting manner. It means
that the entire area is taken over by that law. But in the context of
Vishaka, the Supreme Court was not using this phrase in such a
strict constitutional sense. What the Court was really saying was
something practical. At that time, there was no law dealing with
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sexual harassment at workplace. Because of that the Court laid
down guidelines so that there is system in place. But at the same
time the Court clearly indicated that these guidelines are not
permanent. They are only to operate till a legislation is created. So
when the Court used the expression “occupy the field” it meant
that once a law is enacted that law will take over and the
guidelines will no longer operate independently. It was a way of
saying that the temporary arrangement will give way to a
permanent legal framework. The use of the word “suitable” by the
Court is also very important. The Court did not say just “any
legislation”. It said “suitable legislation”. This means that the law
must be capable of dealing with the problem in a complete
manner. It should address the issue across different kinds of
workplaces and situations. If a law covers only a small section,
then it cannot be said to be suitable in the sense intended by the
Court.
Role of Standing Orders as Law:
18.When this idea is applied to Standing Orders, the limitation
becomes clear. Standing Orders apply only to certain types of
industrial establishments which are covered under the Industrial
Employment (Standing Orders) Act. Many categories of workers
and workplaces do not fall within this framework. For example,
domestic workers, small establishments, educational institutions in
certain situations, or informal sector workers may not be covered.
Therefore, even if Standing Orders are amended to include
provisions on sexual harassment they would still operate only
within a limited field. Because of this limited coverage, such
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amendments cannot be treated as occupying the entire field. They
can certainly operate as law within the establishments to which
they apply. They can provide protection and procedure for those
employees. But they cannot extend beyond that scope. For all
other areas not covered by Standing Orders, the
Vishaka guidelines
would continue to apply until a complete legislation is made.
Therefore, it follows that amendments to Standing Orders can only
partially address the issue. They are important and legally valid
within their area but they do not satisfy the requirement of a
“suitable legislation” which covers the entire field. That
requirement was fulfilled only when a comprehensive statute came
into force covering all workplaces.
Emergence of Comprehensive Statutory Framework under POSH
Act:
19.Finally, the position of law underwent a complete change
when Parliament enacted the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013. This
enactment is a detailed law made after considering the need for a
uniform system across the country. The law now applies to the
whole of India and is not limited to any one type of establishment.
It extends to both public and private sectors. It also includes
unorganized sector which earlier had no coverage. Even domestic
workers who are often outside employment systems are brought
within its protection. This shows that Parliament intended to
create a complete statute covering all workers. This Act mandates
constitution of Internal Complaints Committees in establishments
with a certain number of employees. Where such committees
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cannot be formed provision is made for Local Committees. It
defines what acts will amount to sexual harassment. It also lays
down the procedure to be followed during inquiry. It gives
responsibilities to employers such as ensuring safe working
conditions and assisting in the inquiry process. There is no longer
a situation where different establishments follow different
methods. Because of this structure the earlier guidelines given in
Vishaka cannot continue as the governing law. Therefore, the field
is governed by this Act. It is also necessary to note that this Act
does not depend only on existing systems like standing orders. The
duties are imposed directly by the statute itself. The obligation
flows from the Act. In this way, the law becomes stronger and
more effective. Thus, after the coming into force of this Act the
legal position becomes uniform. The earlier gaps are filled. The
system is no longer dependent only on partial systems. The statute
now governs the entire field in a complete manner.
20.Even after the coming into force of the Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013, the role of standing orders has not come to an end. They
still have importance, but their position has changed. The Act itself
makes it clear that every employer must treat sexual harassment as
misconduct and must incorporate such provision in service rules or
standing orders. This shows that the legislature was conscious that
internal service conditions must reflect this prohibition. Therefore,
standing orders are now used as a tool to give effect to the Act at
the workplace. They operate as part of implementation. This also
means that the standing orders now function within the system of
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the Act. Before 2013 if standing orders were amended to include
sexual harassment provisions they had their own legal force as
delegated legislation. They could regulate conduct within the
establishment and provide a basis for disciplinary action. But even
then they were only covering a limited area the establishments to
which they applied. They were not capable of addressing the issue
across all sectors and categories of workers. After the Act came
into force the situation changed. Now the authority flows from the
statute itself. The obligation to include such provisions in standing
orders arises because the Act. Therefore, standing orders are now
subordinate to the Act and function as a means of carrying out its
provisions. They help in applying the law within the structure of
the establishment. Thus, the legal position becomes clear. Before
2013 amended standing orders could operate as law within a
limited field and could give effect to the
Vishaka principles in those
establishments. But they could not be treated as complete
legislation for the entire country. After 2013 the statutory regime
under the Act governs the entire field. Standing orders continue to
exist but only as part of mechanism under the Act. They assist in
implementation but the governing law is the statute itself.
Judicial Developments and Applicable Legal Principles:
21.The later judgments of the Supreme Court also support this
understanding. In
Medha Kotwal Lele v. Union of India, (2013) 1
SCC 297, the Court found that even after
Vishaka, many
institutions were not properly following the guidelines. Because of
this failure the Court issued further directions. It made it very clear
that the Complaints Committee as spoken in Vishaka will act as the
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inquiry authority in such cases. This means that the findings of
that Committee will have the same value as findings in a
disciplinary enquiry. The Court also directed that necessary
amendments should be carried out not only in service rules but
also in the Industrial Employment Standing Orders Rules. This
shows that the Court itself expected that the standing orders will
carry these changes and operate as part of the legal system dealing
with such misconduct.
22.This position becomes even clearer in the later judgment of
Aureliano Fernandes v. State of Goa,(2024) 1 SCC 632. In that
case, the Supreme Court examined the full journey from
Vishaka
guidelines to the final legislation in the form of the PoSH Act. The
Court explained that
Vishaka was filling a gap till legislation came.
It also explained how later directions and amendments tried to
support that system. The Court clarified how enquiries in such
matters must be conducted. It said that even though some
flexibility is allowed the enquiry must still be fair. The phrase “as
far as practicable” does not mean that the employer can ignore
basic procedure. It only means that strict technical rules can be
adjusted, but the requirement of natural justice must always
remain. The person accused must know the allegations, must get
material, and must get chance to defend. If this is not followed,
then the enquiry cannot stand. Thus, when all these judgments are
read together one clear position comes out. The law did not
operate in a vacuum after
Vishaka. It worked through existing
systems like service rules and standing orders. At the same time it
insisted on fairness in enquiry.
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23.Seen from this angle, the submission made on behalf of the
petitioner has much substance. The Tribunal was required to look
at the actual manner in which the enquiry was conducted and not
merely at the form of the authority conducting it. Simply because a
Complaints Committee in the exact format as described in
Vishaka
was not constituted that by itself could not have been treated as
enough to declare the entire enquiry illegal. The law requires
examination of substance.
24.The petitioner has placed a specific case that the enquiry was
conducted under the Model Standing Orders, which themselves
have statutory force. It is stated that the workman was given
proper notice of the charges. He was supplied with the complaint
and all relevant material. He was present in the proceedings. He
was allowed to take assistance of a representative. He was also
given opportunity to defend himself and to meet the allegations. If
these facts are correct, then it shows that the enquiry was not
conducted behind his back or in a secret manner. It indicates that
the workman was aware of what was alleged against him and was
given a chance to answer it. In such a situation the Tribunal was
under a duty to examine whether the enquiry satisfied the
requirement of fairness. It is not the form of the authority that
decides validity. The Tribunal should have considered whether the
workman understood the charges, whether he was given
documents, whether he could participate effectively, and whether
he was denied any reasonable opportunity. Instead, the Tribunal
has stopped at saying that a particular type of committee was not
formed therefore the approach becomes erroneous.
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25. If the substance of fairness is present then minor variations
in procedure cannot make the enquiry bad. A disciplinary
proceeding must be a fair process. If the workman knew the case
against him, had access to the material and was given a fair chance
to explain, then the enquiry cannot be rejected only on the ground
that the format of a Committee was not followed. Therefore, the
Tribunal was required to go deeper and examine whether any
injustice was caused. If no prejudice is shown and if the process
satisfied the principles of natural justice, then the enquiry could
not have been set aside on such a ground. The failure to undertake
this examination makes the judgment of the Tribunal legally
unsustainable.
26.At the same time, the submission made on behalf of the
respondent also cannot be ignored, because it is correct to the
extent that the judgment in
Vishaka had clear legal force. The
Supreme Court itself had said that those guidelines will operate as
law and will be binding on all employers and institutions. This
position continued till a legislation was enacted. Therefore, it is
not open for the petitioner to argue that
Vishaka had no binding
effect. That position cannot be accepted because it goes against the
settled constitutional principle under Article 141.
27.This understanding is further supported by the later
judgment in
Aureliano Fernandes, where the Supreme Court
clearly explained that
Vishaka guidelines and the subsequent
directions were filling the gap and were to be treated as law until
the field was occupied by proper legislation, which came in the
form of the POSH Act. This shows that during the relevant period,
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the employer was not free to act without regard to
Vishaka. The
employer was required to keep those guidelines in mind and
ensure that the process adopted does not violate the spirit of those
directions. The real issue is whether
Vishaka applied or not. The
real question is whether there was such a violation of those
guidelines or of principles of natural justice that the entire enquiry
becomes invalid.
28.If the employer has conducted a disciplinary proceeding
where the workman was informed of the allegations, was given
access to the complaint and supporting material, was allowed to
participate, and was given a fair chance to defend himself, then the
requirement of fairness may be satisfied. In such a case, even if the
forum was not formally named as a “Complaints Committee” in the
exact language of Vishaka, that alone may not be sufficient to
invalidate the enquiry. The purpose of the
Vishaka guidelines was
to ensure fairness, sensitivity, and protection against arbitrary
action. If that purpose is substantially achieved then the enquiry
cannot be set aside only on naming or structural differences.
Therefore, what is required is to see whether any prejudice has
been caused to the workman. If the workman has been denied
opportunity or if material has been withheld or if the process was
biased or one-sided, then certainly the enquiry would fail. But if no
such prejudice is shown and the workman had full opportunity to
defend, then mere absence of a designated Committee cannot be
treated as fatal.
29.The respondent has also placed reliance on the scheme
brought in by the enactment of the Sexual Harassment of Women
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at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
There is no doubt that after this enactment the entire legal
position has become clear. The Act defines what amounts to sexual
harassment. It makes it compulsory for employers to create
Internal Complaints Committees. It also provides for Local
Committees in certain cases. It lays down duties, procedure, and
consequences. Therefore, as on today, there is no uncertainty. The
field is occupied by statute.
30.However, this position by itself does not decide the present
dispute. One must see the time when the cause of action arose and
when the enquiry was conducted. If the facts relate to a period
prior to the coming into force of this Act on 9 December 2013,
then the Court cannot directly apply the provisions of this statute
as if they were always in force. Law has to be applied according to
the time when the events happened. Therefore, for that earlier
period the Court has to fall back on the legal position that existed
then, which consisted of the Vishaka guidelines and the service or
standing order rules applicable to the establishment.
31.It is true that the POSH Act is a complete legislation. It has
taken over the entire field which was earlier occupied through
judicial guidelines. In that sense it has occupied the field fully. But
before this Act came the situation was different. The legislation
existed through judicial directions and through existing service
models like standing orders. Therefore, while dealing with cases
from that earlier period, the Court cannot apply present standards
in a mechanical way. Therefore, the reliance on the POSH Act
helps to understand the present legal position but for deciding the
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present dispute what is important is whether at the relevant time
the employer followed a procedure within the model available to
it. If that is satisfied then absence of a committee as required by
statute cannot make the enquiry invalid.
Analysis of Tribunal’s Findings:
32.The Tribunal appears to have fallen into error if it has
treated the absence of a Complaints Committee in the manner
contemplated in
Vishaka, as making the enquiry illegal, without
going into the facts of how the enquiry was conducted. The law
does not permit such a conclusion without examination. The
Tribunal was required to see whether the workman was given a
fair opportunity to defend himself. The focus should have been on
the conduct of the enquiry. It should have been seen whether the
workman understood the allegations, whether he had access to the
complaint and material and whether he was able to answer the
case made against him. If these issues were present then the
enquiry could not have been rejected because it did not carry a
particular label. It was also necessary for the Tribunal to examine
the findings of the Enquiry Officer on their own merits. A finding
cannot be set aside merely because the Tribunal takes a different
view. The Tribunal had to consider whether the conclusions
reached by the Enquiry Officer were supported by evidence on
record. It also had to see whether any part of the enquiry process
was conducted in a manner which violated principles of natural
justice. Natural justice means fairness in action. If the procedure
adopted was such that the workman was denied a chance to
defend then the enquiry would fail. But if no such defect is shown
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then the findings cannot be disturbed. If the Tribunal has not
undertaken this exercise and has instead proceeded on a
assumption that non-constitution of a Complaints Committee is
itself sufficient to vitiate the enquiry, then such reasoning cannot
be sustained. A legal conclusion must follow from examination of
facts. It cannot rest only on a broad proposition without applying it
to the record of the case. The failure to analyse the evidence and
the procedure makes the finding incomplete. A finding that the
conclusions of the Enquiry Officer are “perverse” is a serious
finding and cannot be made in a routine manner. Perversity does
not mean that another view is possible. It means that the
conclusion is either based on no evidence at all or that it is so
unreasonable that no reasonable person could have reached it. It
may also arise where relevant material is ignored or irrelevant
material is relied upon. Therefore, before recording such a finding,
the Tribunal was required to carefully examine the entire evidence.
From the material referred to in the pleadings it appears that the
petitioner did follow such process. A charge sheet was issued. The
workman was called upon to give his reply. Evidence was recorded
during the enquiry. They form the backbone of a disciplinary
proceeding. Such a record required careful scrutiny by the
Tribunal. It could not have been brushed aside in a summary
manner without proper discussion. The Tribunal was expected to
analyse whether these steps satisfied the requirement of fairness
and whether any real prejudice was caused. In the absence of such
examination, the conclusion reached by the Tribunal cannot be
said to be legally sustainable.
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33.For these reasons, the Tribunal’s approach, to the extent it
holds the enquiry not legal merely on the ground that it was not
conducted in the exact manner of
Vishaka, is not sustainable. The
correct course was to examine the actual fairness of the process,
the material disclosed, the opportunity given, and the prejudice, if
any, caused to the workman. If that exercise is not shown in the
Award, then the finding that the enquiry was illegal and the
findings of the Enquiry Officer were perverse cannot be allowed to
stand.
34.In view of the foregoing discussion and for the reasons
recorded hereinabove, the following order is passed:
(i) The writ petition succeeds;
(ii) The Part I Award dated 9 December 2025 passed by the
Industrial Court, Nashik in Reference (IT) No. 3 of 2013, to
the extent it holds that the domestic enquiry is illegal, unfair
and vitiated, and that the findings of the Enquiry Officer are
perverse, is quashed and set aside;
(iii) The matter is remanded to the Industrial Tribunal for
fresh consideration of the issue regarding validity of the
domestic enquiry, in accordance with law and in light of the
observations made herein. The Tribunal shall specifically
examine whether the enquiry was conducted in compliance
with principles of natural justice, whether any real prejudice
was caused to the workman, and whether the findings of the
Enquiry Officer are supported by evidence;
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(iv) The Tribunal shall decide the said issue afresh, without
being influenced by its earlier observations, and thereafter
proceed in accordance with law;
(v) All contentions of the parties on merits are kept open;
(vi) The Industrial Tribunal is requested to dispose of the
reference expeditiously, preferably within a period of six
months from the date of receipt of this order;
(vii) Rule is made absolute in the aforesaid terms. No order
as to costs.
(AMIT BORKAR, J.)
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