Telangana High Court
Mr Dondaptti Sateesh Reddy vs State Of Telangana on 27 March, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 19730 OF 2023
ORDER:
Petitioner is running the software company in the name and style of 'VIP Screen LLP Wave Broadcasting Solutions', which provides graphic designs to customers. It is stated, on 16.12.2021, he hired the 3rd respondent as a graphic designer with a monthly salary of Rs. 22,000/-. She performed satisfactorily for six months, but later when faced difficulties in work and unable to download t he graphics sent by one of the customers at Chennai, petitioner advised her to focus on work, warning that failure to do so could result in termination as per the agreement terms.
According to petitioner, to gain efficiency, in October, 2022, he asked the 3rd respondent to go to Chennai for training, but she refused due to health reasons. In the first week of November 2022, Chennai customer again requested training for respondent No. 3. Considering her language barrier, the petitioner planned to go to Chennai for other work and asked the 2nd respondent No. 2 to accompany. The 3rd respondent booked air tickets for both herself and petitioner for 15th of November up journey and 17th return journey and also booked two rooms at Park Hotel, Chennai.
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It is stated, petitioner and the 3rd respondent arrived at Hotel on 15.11.2022 around 5:00 PM and checked- into their rooms. Around 5:10 PM, petitioner called the 3rd respondent to go out for evening snacks, but she declined, citing the need to rest. Petitioner left alone and returned around 7:00 PM, attempting to contact respondent No. 3 several times with no response. After complaining to hotel management, they found the 3rd respondent's room empty, without any luggage. Petitioner therefore, filed a complaint with Station House Officer, Annasela Police Station. Surprisingly, the 3rd respondent sent an e mail to the HR Manager and petitioner on 17.11.2022 at 2:29 PM, stating she couldn't attend work for the next two weeks due to personal reasons. On 01.12.2022, she requested leave until Monday, 05.12.2022, and has not attended work since 17.11.2022.
While so, petitioner received a phone call from Jubilee Hills Police Station on 13.12.2022 at about 11:00 AM, informing them of a complaint filed by the 3rd respondent alleging misbehaviour with her at Chennai, which led to registration of FIR No. 741 of 2022 on 13.12.2022 under Sections 354, 354-A, and 509 IPC. Police issued notice under Section 41-A Cr.P.C. to petitioner. Additionally, the 2nd respondent sent a mail to petitioner on 16.02.2023, summoning 3 them to attend LC committee meeting on 22.2.2023 at 12:00 Noon at the office of the District Welfare Officer, Abdis. The case was numbered as 2 of 2022. Petitioner appeared through counsel on 22.2.2023 and submitted an explanation, asserting their innocence and addressing the false complaint. Subsequently, another notice was sent via mail dated 03.03.2023, directing petitioner to attend meetings on 06.03.2023 and 10.03.2023. the 2nd respondent instructed petitioner to settle the dispute with the 3rd respondent by paying an amount of Rs. 20 lakhs. Aggrieved by the same, petitioner filed Writ Petition No. 6598 of 2023 and the complainant also filed Writ Petition No. 6031 of 2023 for non- concluding the enquiry as per the Act. This Court disposed of both the Writ Petitions on 10.03.2023 with a common order, the operative portion of the order is as below;-
" In view of the submissions made by respective parties, both the writ petitions are disposed of directing respondent No.2- Local Committee to issue notice to the petitioner as well as respondent No.3 in W.P.No.6598 of 2023 for conducting enquiry as required under Section 10 of POSH Act, 2013 by giving date of enquiry on 25.03.2023. The petitioner and respondent No.3 in W.P.No.6598 of 2023 are entitled to raise all the objections as available under law. Respondent No.2 is directed to consider the objections raised by respective parties and pass appropriate orders, in accordance with law, within a period of ten (10) weeks".4
In response to the allegations, petitioner filed objections on 25.03.2023, narrated in the affidavit, in detail, and also appeared before the 2nd respondent, but the 3rd respondent was absent. Subsequently, the 2nd respondent called petitioner and instructed them to attend Zoom meeting at 6.00 PM., on 12.04.2023, where his statement was recorded but no opportunity to present evidence was given. Astonishingly, the 2nd respondent communicated the report dated 06.06.2023 to petitioner only on 24.06.2023 directing them to a) provide full salary to the 3rd respondent from 22.11.2022 to 06.06.2023, b) issue an experience certificate, c) pay Rs. 1,00,000-00 as compensation for mental agony, and d) pay a fine of Rs. 50,000- 00 to the LC committee for not forming an internal committee. Petitioner challenges this report dated 06.06.2023 in Case No. 2/2022 on various grounds:
a) the 2nd respondent failed to provide opportunity for cross-examination of witnesses LW1 to LW6, with their statements recorded on 01.04.2023, 06.04.2023, and 29.04.2023 respectively, without notice to the petitioner, violating principles of natural justice.
b) failure of the 2nd respondent to adhere to legal precedents, including the judgment in Aureliano Fernandes vs State of Goa (Civil Appeal No. 2482/2014) dated 12.5.2023, 5 exemplifies an improper exercise of discretion, contrary to natural justice.
c) non-compliance with legal precedent set by the High Court of New Delhi in Writ Petition No. 8226 of 2007 dated 29.5.2009, wherein it emphasized the necessity of providing delinquent with an opportunity for cross-examination and to produce witnesses in defense, renders the inquiry invalid.
d) neglect of legal precedent established by the High Court of New Delhi in Writ Petition No. 1665 of 2014 dated 30.09.2014, where the opportunity for cross-examination was granted to the delinquent, illustrates a failure to uphold basic principles of natural justice.
e) failure to adhere to the procedure prescribed under Section 11(3) of the Act, granting the 2nd respondent the powers akin to those of the Code of Civil Procedure (CPC), indicates a procedural lapse.
f) disregard of the office memorandum issued by the Government of India vide F No. 11013/2/2013-Estt (A-III) dated 16.7.2015, which mandates the charged officer's right to cross- examine all witnesses, signifies a denial of reasonable opportunity to the charged officer.
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g) recording the petitioner's statement on 25.3.2023 before those of LW1 (recorded on 1.4.2023) indicates a procedural irregularity.
h) failure of the 2nd respondent to consider the objections filed by the petitioner, as per the order of the Hon'ble Court dated 10.03.2023 in Writ Petition No. 6598 of 2023, constitutes a violation of the court's directive.
i) recording the statements of LWs.1 to 6 and RW1 and reaching findings without proper appreciation of their statements, as observed by the 2nd respondent, reflects arbitrary decision-making.
2. The 2nd respondent District Education Officer / Local Committee Chair Person filed the counter-affidavit stating that the 3rd respondent, who worked as graphic designer at petitioner company, made a complaint on 22.11.2022 under Section 9 of the POSH Act 2013, alleging sexual harassment by her employer. She stated that she was asked by petitioner to attend a training session in Chennai, for which he booked flight tickets and hotel rooms at Park Chennai. Upon arrival, she called the Petitioner from outside his room at 5:22 pm, as instructed, but upon entering, she was allegedly molested by petitioner. Following a complaint alleging sexual harassment, this respondent took action by issuing notices via e mail on 7 29.11.2022, 30.01.2023, 04.02.2023 requesting petitioner's attendance before the Local Committee. Despite repeated notices, petitioner failed to appear before the Committee. On 16.02.2023, after gathering relevant contact details, their office issued another notice for a meeting on 22.02.2023, which petitioner also did not attend. Subsequently, notices were sent via speed post and e mail on 04.03.2023 for a meeting on 06.03.2023. Petitioner responded, citing ill-health, and meeting was re-scheduled for 10.03.2023, however, petitioner did not attend and speed post was returned undelivered.
It is stated, the Local Committee repeatedly contacted petitioner urging attendance at Hyderabad meeting to address the 3rd respondent's complaint, however, petitioner intentionally avoided these meetings, surpassing the 90-day inquiry completion limit outlined in the POSH Act, meanwhile, the 3rd respondent approached the committee and thereafter, filed Writ Petition No. 6031 of 2023, challenging the delay in completing the inquiry. Petitioner also filed Writ Petition No. 6598 of 2023, contesting non-allowance of counsel during the proceedings. Both petitions were heard together and disposed of by a common order on 10.03.2023. The Court directed the Local Committee to issue notices to both parties for conducting an inquiry. Petitioner was granted liberty to raise objections and 8 Local Committee was instructed to consider these objections and pass appropriate orders within 10 weeks. In compliance with Court's order, the 2nd respondent issued notices to petitioner and conducted a detailed inquiry, recording statements from parties and witnesses. Despite several notices, petitioner initially failed to respond but eventually appeared before the Committee. He provided a written reply and made statements, requesting the committee to proceed with the inquiry based on available evidence and witness testimonies.
This respondent asserts that Writ Petition challenging the Report dated 06.06.2023 lacks merit, as petitioner's claim regarding absence of cross-examination opportunities is baseless. The High Court had previously clarified that all objections could be raised before the Committee, yet petitioner did not express intent to cross- examine witnesses. The Respondent followed statutory procedures, ensuring fair opportunities for the petitioner and recording their statement before filing the report. Therefore, claims of violating natural justice principles are unfounded. Petitioner failed to file a representation against the findings as required by Section 11 proviso (2) of the POSH Act, rendering Writ Petition non-maintainable.
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3. The 3rd respondent filed the counter-affidavit denying all the allegations made in the accompanying Petition, stating them as false and baseless. It is stated, she had been working diligently since her appointment and she used to report directly to petitioner. Since the date of joining, petitioner used to make the 3rd respondent feel uncomfortable and used to make several inappropriate remarks at the workplace. Petitioner, on multiple occasions, insisted the 3rd respondent to accompany him Chennai to undergo a training programme. In view of petitioner's behaviour, the 3rd respondent managed to postpone this so-called training programme on the ground of medical treatment, however, on 12.11.2022, petitioner insisted that she should accompany him to Chennai from 15.11.2022 to undergo training and even threatened to fire her if she refused to accompany him to Chennai. Under this grave threat of losing her source of livelihood, the 3rd respondent was forced to agree to go for training programme to Chennai on 15.11.2022.
In a distressing incident on 15.11.2022, the 3rd respondent faced sexual harassment by Petitioner at Park Hotel, Chennai. According to her, petitioner orchestrated the trip with the intent of coercing the 3rd respondent to provide sexual favors. When she refused, she was subjected to molestation and harassment. On 22.11.2022, the 3rd respondent, with courage, 10 lodged a complaint with the 2nd respondent Local Committee formed under Section 6 of the POSH Act. Seeking relief during the inquiry, she requested the LC to grant her leave until its completion. Additionally, she sought payment of salaries, continuation of salary slips, termination of employment, damages for mental trauma and a written apology from petitioner. She also appealed for permission to leave the company.
It is stated, the 3rd respondent, in compliance with the statutory provisions outlined in Sections 11(4) and 13 of the POSH Act, filed Writ Petition No. 6031 of 2023, highlighting the failure of the 2nd respondent Local Committee to complete inquiry into sexual harassment complaint within the mandated 90-day period. Upon hearing arguments from both the parties, this Court disposed of the Writ Petition directing the 2nd respondent to issue notices to both the petitioner and the 3rd respondent for conducting an inquiry and passing appropriate orders within ten weeks. The Court emphasized the parties' entitlement to raise objections as per the law.
Subsequently, the 2nd respondent initiated a detailed inquiry, recording statements from all relevant parties and witnesses. Despite several notices issued by the Committee, petitioner failed to respond promptly and only appeared after 11 considerable efforts from the Committee. Petitioner submitted a written reply and provided statements before the committee, urging them to proceed with the inquiry based on available evidence.
Petitioner lodged a Writ Petition contesting the report dated 06.06.2023, alleging it to be baseless and untenable on the ground that the 2nd respondent failed to provide the opportunity for cross-examination of witnesses, but this contention was dismissed as petitioner did not communicate an intention to cross-examine witnesses during the proceedings. The 3rd respondent was informed by the Committee that petitioner declared, in writing, that he had no witnesses and did not intend to examine any. Despite this, petitioner insisted that the proceedings continue with witness hearings.
This respondent argues that allowing petitioner to cross-examine witnesses directly would be prejudicial, given the power dynamics between them and the witnesses, who are either current or former employees of petitioner. This respondent contends that such direct cross-examination could intimidate the witnesses and compromise the integrity of the inquiry process. Additionally, it is highlighted that the rules prohibit parties from being represented by legal practitioners 12 during the inquiry. The only permissible method for petitioner to cross-examine witnesses is through a questionnaire submitted to the Committee, which would then be circulated to the witnesses. However, petitioner himself indicated to the Committee that he did not intend to examine any witnesses, thereby waiving his right to cross-examination. Furthermore, this respondent stresses the importance of maintaining confidentiality of witnesses to ensure a safe environment for reporting instances of sexual harassment; revealing the identities of witnesses, who are predominantly young women and victims of harassment, could jeopardize their safety and deter others from coming forward with complaints. Therefore, the Respondent asserts that maintaining witness confidentiality is essential for the integrity of the inquiry process.
4. Heard Sri Gudi Madhusudhan Reddy, learned counsel for petitioner, learned Government Pleader for Women Development and Child Welfare, Sri Mohammed Omer Farooq, learned counsel for the 3rd respondent and Sri Umar Farookh Shaik, learned Standing Counsel on behalf of the 2nd respondent. Perused the record.
5. A perusal of the report impugned shows lack of bona fides on the part of petitioner. It recorded that Local Committee, Hyderabad made several calls and repeatedly 13 directed petitioner to attend the meeting, but he intentionally avoided to attend and exceeded the time limit of 90 days in which inquiry has to be completed as per POSH Act. Later, in Zoom calls, he narrated the happenings; on 16.12.2022, police of Jubilee Hills called him and surrounded his house for which he felt hurt as his image got damaged in front of neighbors and his wife. He did not agree for conciliation but promised to give the 3rd respondent 15 days salary in November 2022 and experience certificate and he also said that the 3rd respondent has no evidence against him, insisted as he did not have any witnesses with him, he would obey Local Committee decision after listening to CW1 witnesses and requested to continue the enquiry. The other witnesses examined also supported the version of the 3rd respondent, hence, the Local Committee came to the conclusion that petitioner is habituated to talk to girls to satisfy his sexual anxiety and plans to molest them, thus found him guilty and made the recommendations as mentioned in the impugned order. The Local Committee is the fact-finding authority, which has recorded the statements of victim, petitioner as well as other employees who worked with petitioner company. This Court is therefore, not inclined to interdict with the decision arrived at by them.
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6. As far as the contention of petitioner that he was not given opportunity to cross-examine the witnesses, the 2nd respondent submits that petitioner did not choose to communicate his intention to cross-examine any of the witnesses examined by the Committee and the 2nd respondent made its report after following the statutory procedure, giving fair opportunity to petitioner. Further, it is stated that after communication of enquiry report dated 06.06.2023 petitioner has to file a representation against the findings before the Committee as contemplated under Section 11(2) of the POSH Act, but he failed to utilise the said remedy. The 3rd respondent also stated that she was informed by the 2nd respondent that petitioner gave a written declaration that there were no witnesses from his side and that he does not intend to examine any of the witnesses; a copy of declaration was not given to petitioner and is available in the records of the 2nd respondent.
7. In this regard, learned counsel for petitioner draws attention of this Court to the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, particularly Section 11(3) which prescribes that for the purpose of making an enquiry 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 15 a civil Court the Code of Civil Procedure, 1908 when trying a suit in respect of the 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 mater which may be prescribed; d) the inquiry under sub-section (1) shall be completed within a period of ninety days. The proceedings of Government of India updated on 04.11.2022 regarding examination of witnesses, is extracted as under:
Examination of Witnesses Summons would, thereafter, be sent to the witnesses listed in the Charge sheet. The Presenting Officer may choose to produce them in any order he finds appropriate. These witnesses would be examined in the inquiry in the following manner. The examination in chief would be done by the Presenting Officer where the Presenting Officer may ask questions of the witness to ascertain the facts. The witness would, thereafter, be cross-examined by the Defense. After the cross-examination, the Presenting Officer would be given an opportunity to re-examine the witness. In the examination in chief, leading questions are not allowed. These are however allowed in the cross examination.
The procedure of Inquiry requires opportunity to the Charged Officer to cross- examine all the witnesses that appear on behalf of the Prosecution, Failure to do so may be construed as a denial of reasonable opportunity to the charged officer, resulting in vitiation of the Inquiry. If the complainant appears as a witness, she would also be examined and cross-examined. The Inquiry Officer may however disallow any questions which are offensive, indecent or annoying to the witnesses, including the complainant.
If Inquiring Authority wishes to ascertain some facts for clarity, he may pose questions to the witnesses. This should however, be done in such a manner as to not show any bias for or against the Charged Officer. This has to be done in the presence of the Presenting Officer and the Charged Officer/Defence Assistant. No Inquiry should be conducted behind the back of the charged officer. The witnesses will be examined one by one, and the other witness who are either yet to be examined, or have been examined are not allowed to be present during the examination of a witness.
8. Learned counsel also relied on the judgments of the High Court of Delhi in Prof. Bidyug Chakraborty v. Delhi University (W.P.(C) No. 8226 of 2007) and Avinash Mishra v. Union of India (W.P(C).No. 821 of 2014), wherein it has been 16 held that it is obligatory on the part of the Apex Committee, which inquired into the matter, to at least follow the fundamental norms for conducting inquiry. If we do not read such a requirement to be implicit in Ordinance XV-D, it may not be possible to sustain the validity of inquiry procedure prescribed therein. The enquiry conducted without giving an opportunity to the delinquent to cross-examine the witnesses and principles of natural justice and a procedure which does not contain even these minimum safeguards for the delinquent employee cannot be said to be a fair and reasonable procedure for conducting inquiry. In the said cases, admittedly, delinquents were not given opportunity, here, in the instant case, the Local Committee recorded that petitioner did not choose to communicate his intention to cross-examine any of the witnesses examined; the report was filed by the 2nd respondent only after recording the statement of petitioner and further ensuring that petitioner was aware of the proceedings, as such, the petitioner's claim that the 2nd respondent violated the principles of natural justice is unfounded. Hence, the judgments relied on by petitioner does not apply to the facts of the case on hand.
9. In view of the foregoing discussion, it cannot be said that petitioner was denied the opportunity to cross-examine the 17 witnesses and there is flouting of principles of natural justice. The Writ Petition is therefore, liable to be dismissed.
10. The Writ Petition is accordingly, dismissed. However, petitioner is at liberty to avail the remedy under Section 11(3) of the POSH Act, if he is so advised. No costs.
11. Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 27th March 2024 ksld