Bombay High Court

Abc vs Internal Complaints Committee And Ors on 3 November, 2025

Author: N. J. Jamadar

Bench: N. J. Jamadar

2025:BHC-AS:46642
WP(ST)15574-2025.DOC

Santosh

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

WRIT PETITION (ST) NO. 15574 OF 2025

ABC ...Petitioner
Versus
1. Internal Complaints Committee
Constituted under the POSH Act, 2013 by
SANTOSH Akasa Air
SUBHASH
KULKARNI 2. Akasa Air, Having Headquarters at Urmi
Digitally signed by Estate, Tower A, 12th Floor, 95 Ganpatrao
SANTOSH SUBHASH
KULKARNI
Date: 2025.11.03
Kadam Marg, Lower Parel (W)
22:08:02 +0530

3. XYZ ...Respondents
WITH
INTERIM APPLICATION NO. 8040 OF 2025

Ms. Ankita Singhania, a/w Burzin Somandy, Swati Chaudhary,
Yukti Mitta, Ariana Somandy i/by Tejaswita Nalwade
(Somandy), for the Petitioner in WPST/15574/2025 and
for the Applicant in IA/8040/2025.
Ms. Payel Chattarjee, a/w Suchita Choudhry and Pranay Tuteja
i/b Tri Legal, for the Respondent Nos.1 and 2.
Mr. Rajendra Mishra, a/w Saurabh Mishra, for Respondent
No.3.

CORAM: N. J. JAMADAR, J.
RESERVED ON: 4th SEPTEMBER, 2025
PRONOUNCED ON: 3rd NOVEMBER, 2025

JUDGMENT:

1. Rule. Rule made returnable forthwith and, with the

consent of the learned Counsel for the parties, heard finally.

2. By this petition under Articles 226 and 227 of the

Constitution of India the petitioner seeks to quash and set aside

WP(ST)15574-2025.DOC

the final report dated 12 th February, 2025, submitted by

Internal Complaints Committee ("ICC") ("R1") constituted by

respondent No.2 to inquire into the complaint made by

respondent No.3 and a direction to respondent No.1 to conduct

a fresh inquiry by adhering to the principles of natural justice

and affording an effective opportunity of hearing to the

petitioner.

3. The petitioner has also preferred an interim application

seeking stay to the implementation of the recommendations

under the impugned final report till the final disposal of the

petition.

4. A preliminary affidavit-in-reply has been filed on behalf of

respondent No.2 challenging, inter alia, the very tenability of the

petition on the ground that a writ petition under Article 226 of

the Constitution of India is not maintainable against the

respondents, who are private entities and that the petitioner has

an efficacious statutory remedy of preferring an appeal before

the Appellate Authority under Section 18 of the Sexual

Harassment of Women at Workplace (Prevention, Prohibition

and Redressal) Act, 2013 ("the POSH Act"). Respondent No.2 has

also contested the petition on merits.

WP(ST)15574-2025.DOC

5. In the backdrop of the nature of the resistance put-forth

by the respondents on the aspect of the maintainability of the

petition, it was considered appropriate to hear the petition itself

alongwith the application for interim relief. If the Court comes

to the conclusion that the petition itself is not maintainable, an

elaborate consideration on the merits of the matter and the

application for interim relief may not warranted. Accordingly,

the parties were put to notice and they were heard at some

length.

Background:

6. Shorn of superfluities, the background facts can be stated

as under:

6.1 Respondent No.2 is a private Airline. The petitioner has

been employed with respondent No.2 as Captain. Respondent

No.3 was appointed as a trainee captain. The petitioner was

assigned the duty to oversee the training of respondent No.3.

6.2 On 24th November, 2024, respondent No.3 made a

complaint against the petitioner purportedly highlighting a list

of instances of behaviour of, and comments made by, the

petitioner which caused discomfort and desecrated the

professional learning environment for respondent No.3.

WP(ST)15574-2025.DOC

6.3 ICC (R1) commenced the inquiry. A copy of the complaint

was served on the petitioner. The latter gave his written

response to ICC (R1). ICC (R1) examined the complainant (R3),

the petitioner and three witnesses namely PK(W1), AG(W2) and

DF(W3).

6.4 After appraisal of the evidence and material, a preliminary

inquiry report was prepared and the findings were shared with

the complainant (R3) and the petitioner, on 20 th January, 2025.

The petitioner contested the findings recorded by ICC (R1).

Recording that the petitioner was unable to make or

substantiate any new representation and all the points raised by

the petitioner were already considered, ICC (R1), by its final

order dated 12th February, 2025, made, inter alia, the following

recommendations:

(a) A final warning letter be issued to the petitioner

explaining the importance of making all colleagues feel

comfortable, and always conducting oneself professionally

with peers, colleagues and trainees at all times including

at work place and that the petitioner must facilitate a

professional and mature work environment, reinforcing

the values of respect and dignity for the individual.

WP(ST)15574-2025.DOC

(b) The petitioner shall be required to undergo the

learning module of POSH as a refresher training.

for a period of six months from the date of the said report.

(d) The petitioner's Employee Leisure Travel benefits

shall stand revoked for a period of 45 days from the date of

issuance of the final warning letter.

7. Being aggrieved, purportedly more by the procedure

adopted by respondent No.1, the petitioner has invoked the writ

jurisdiction.

Grounds of challenge:

8. The principal grounds of challenge are that respondent

No.1 was legally bound to conduct its inquiry in strict adherence

to the principles of natural justice as envisaged under Rule 7 of

the POSH Rules, 2013, procedural fairness and statutory

obligations. However, the inquiry conducted by respondent No.1

was marred by severe procedural violations. Firstly, there was

complete denial of petitioner's right to cross-examine the

witnesses on whose statements findings were based by

respondent No.1. The denial of the opportunity to cross-

examine the witnesses constituted breach of fundamental

principles of natural justice and fairness. In substance, the

WP(ST)15574-2025.DOC

principle of audi alteram partem was flagrantly violated.

Secondly, the petitioner was not afforded an opportunity of

personal hearing and the entire inquiry was conducted solely on

basis of written submissions. Thirdly, the impugned

recommendations lack the essential qualities of objective

reasoning, analysis and consideration of the relevant material.

The contentions raised by the complainant were blindly

accepted and the points raised by the petitioner were

unjustifiably discarded without any consideration. The

petitioner was also denied the opportunity to examine a witness

in his defence. It was further alleged that there was breach of

confidentiality.

9. In the preliminary affidavit-in-reply, respondent No.2

employer has in addition to raising the issue of maintainability

of the writ petition controverted the aforesaid contentions.

10. I have heard Ms. Ankita Singhania, the learned Counsel

for the petitioner, Ms. Payel Chatterjee, the learned Counsel for

respondent Nos.1 and 2 and, Mr. Mishra, the learned Counsel

for respondent No.3.

Submissions:

11. Ms. Singhania, the learned Counsel for the petitioner,

submitted that the inquiry and the resultant recommendations

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suffer from the vice of most flagrant violation of the principles of

natural justice and the fundamental principles of judicial

process. Denial of the opportunity to the cross-examine the

complainant's witness was the most invidious infraction of the

basic right of the petitioner to test the truthfulness and veracity

of the allegations.

12. Attention of the Court was invited to the communication

addressed by the petitioner styled as "an interim reply to the e-

mail dated 1st December, 2024", wherein the petitioner had

called upon respondent No.1 to arrange for the cross-

examination of the complainant alongwith the witnesses in

order to prove the innocence of the petitioner. By the said

communication, the petitioner had also requested to provide

personal hearing. Yet, neither the petitioner was provided an

opportunity to cross-examine the complainant and the

witnesses, nor personal hearing was given. In view of the

breach of fundamental tenets of natural justice, Ms. Singhania

would urge, there is no embargo to exercise the writ jurisdiction

despite the existence of a statutory remedy. Therefore, the

challenge to the maintainability of the petition does not deserve

any consideration.

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13. To buttress the submission that, in the cases where the

impugned order has been passed in violation of the principles of

natural justice, the rule of self-imposed restraint in exercising

writ jurisdiction, where an alternate remedy is available, does

not preclude the Court from exercising the writ jurisdiction, Ms.

Singhania placed reliance on a three-Judge Bench judgment of

the Supreme Court in the case of Ghanashyam Mishra and

Sons Private Limited through the Authorized Signatory vs.

Edelweiss Asset Reconstruction Company Limited through the

Director and others1.

14. Ms. Singhania would submit that the opportunity to

cross-examine the witnesses is the most valuable right of a

delinquent. Denial of opportunity to cross-examine the

witnesses and personal hearing completely vitiated the inquiry

and the findings rendered in such inquiry. Reliance was placed

on a judgment of Delhi High Court in the case of Prof. Bidyug

Chakraborty vs. Delhi University and ors.2.

15. Ms. Singhania further urged, while exercising the writ

jurisdiction, the Court must satisfy itself that the inquiry into

the complaint of sexual harassment by the Committee has been

conducted in terms of the governing rules and the concerned 1 (2021) 9 Supreme Court Cases 657.

WP(ST)15574-2025.DOC

employee had a reasonable opportunity to vindicate his position

and establish his innocence. To this end, reliance was placed

on the judgment of the Supreme Court in the case of Aureliano

Fernandes vs. State of Goa and others3

16. Lastly, Ms. Singhania submitted that, the fact that

respondent Nos.1 to 3 are private parties cannot be the sole

determinant on the aspect of the maintainability of the writ

petition. If it can be demonstrated that respondent Nos.1 and 2

were discharging public duties, and they did owe a duty and

obligation to the public, involving a public law element, the writ

petition is maintainable even against private entities. To

buttress this submission, Ms. Singhania placed reliance on a

judgment of the Karnataka High Court in the case of Ms. X vs.

the Internal Complaints Committee4.

17. In opposition to this, Ms. Chatterjee, the learned Counsel

for respondent Nos.1 and 2, stoutly submitted that the petition

is not maintainable on the count of availability of a statutory

efficacious remedy of appeal and the respondents being not

amenable to the writ jurisdiction. On the first count, Ms.

Chatterjee submitted that, all the grounds of infraction of

procedure can be legitimately urged before, and considered by, 3 (2024) 1 Supreme Court Cases 632.

4 WP/8127/2019, dtd.30/9/2024.

WP(ST)15574-2025.DOC

the Appellate Authority in an appeal against the impugned

recommendations. Thus, the prayer to quash and set aside the

impugned recommendations cannot be entertained in the face of

a clear statutory remedy.

18. It was submitted that this Court has consistently taken a

view that in the face of availability of an appellate remedy under

Section 18 of the POSH Act, the Court should refrain from

entertaining the writ petition. Reliance was placed on an order

dated 20th February, 2024, passed in the case of Andrea Pereira

vs. State of Goa through The Chief Secretary and ors. 5, wherein

it was enunciated that in the absence of special reasons

justifying the departure from the self-imposed restriction, the

party invoking the writ jurisdiction must be relegated to the

appellate remedy.

19. On the second count of the respondents not being

amenable to writ jurisdiction, Ms. Chatterjee would urge that

even where the writ petition was maintainable against one of the

respondents, when it was filed, but, subsequently, the said

respondent ceased to answer the description of the State or the

instrumentality of the State, the writ jurisdiction cannot be

exercised. A very strong reliance was placed by Ms. Chatterjee

5 WP/167/2024, dtd.28/2/2024.

WP(ST)15574-2025.DOC

on a judgment of the Supreme Court in the case of R. S.

Madireddy and another vs. Union of India and others 6.

20. In the said case, the question that arose for consideration

was, whether the writ petitions, though maintainable on the

date of the institution, continued to be maintainable as on the

date those petitions were finally heard in view of the

privatization of the Air India Limited. A Division Bench of this

Court has held that with the privatization of the Air India Ltd.,

the jurisdiction of the High Court under Article 226 of the

Constitution of India to issue a writ to Air India Ltd.,

particularly in its role as an employer did not subsist and, thus,

the writ petitions were disposed. After adverting to the previous

pronouncements of the Supreme Court and the various High

Court, the Supreme Court held that once Air India Ltd. ceased

to be covered by the definition of the State within the meaning

of Article 12 of the Constitution of India, it could not have been

subjected to the writ jurisdiction under Article 226 of the

Constitution of India.

21. Ms. Chatterjee further submitted that, reliance on the

decision of the Karnataka High Court in the case of Ms. X

(supra) is of no assistance to the petitioner as, in that case, the

6 2024 SCC OnLine SC 965.

WP(ST)15574-2025.DOC

petitioner had approached the High Court seeking a writ to the

Internal Complaints Committee to inquire into the petitioner's

compliant in accordance with the provisions of POSH Act as the

respondents therein had taken a stand that they lacked

jurisdiction to inquire into the complaint, as the driver against

whom the complaint was made was not the employee of OLA.

22. Ms. Chatterjee further submitted that, as the final

recommendations made by respondent No.1 (extracted above)

have been given effect to, at this stage, there is no propriety in

entertaining the petition.

23. Mr. Mishra, the learned Counsel for respondent No.3 -

complainant, supplemented the submissions of Ms. Chatterjee.

24. Ms. Singhania joined the issue by canvassing a

submission that, in this petition, the petitioner has not assailed

the impugned recommendations on merits. It is the gross

procedural irregularities in the conduct of the inquiry and the

submission of final recommendations that furnishes a ground to

invoke the writ jurisdiction. It was submitted that the petitioner

has suffered irretrievable prejudice on account of the

recommendations made by respondent No.1 to debar the

petitioner from upgrade. The communication of the report has

marred the chances of the petitioner from being appointed

WP(ST)15574-2025.DOC

to one of the prestigious positions. Therefore, the

recommendations cannot be said to be innocuous on account of

the passage of time stipulated therein.

Consideration:

Maintainability of the writ petition against the private entities:

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

If the words, "to any person or authority" are literally construed,

then writ can be issued even against private persons. Likewise,

if the term, "for any other purposes" is interpreted literally, the

writ court would be within its right in issuing a writ for any

purpose whosoever, even for resolving the private disputes.

However, these expressions have not been construed in such

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

that a writ will lie against the State or the instrumentality of the

State, and a private entity only when such private entity

performs a public function or discharges a public duty involving

a public law element.

26. In the case of Andi Mukta Sadguru Shree Muktajee

Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and

others vs. V. R. Rudani and others 7, the Supreme Court

enunciated the import of the term "authority" as under:

7 (1989) 2 Supreme Court Cases 691.

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"20. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied."

(emphasis supplied)

27. The Supreme Court has emphasised that the words, "any

person or authority" used in Article 226 are not confined only to

statutory authorities or instrumentality of the State. They may

cover any other person or body performing public duty. The

form of the body is not as relevant as the nature of the duty

imposed on the entity.

28. In the case of Federal Bank Ltd. vs. Sagar Thomas and

others8, the Supreme Court after adverting to the previous

pronouncements culled out the entities against whom writ

petition under Article 226 of the Constitution of India may be

entertained. The observations in paragraph 18 read as under:
"18. From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Govt); (ii) Authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; ( v) a company which is financed and owned by the State; (vi) a private body run

8 (2003) 10 Supreme Court Cases 733.

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substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature (viii) a person or a body under liability to discharge any function under any Statute, to compel it to perform such a statutory function."

(emphasis supplied)

29. In the case of St. Mary's Education Society and another

vs. Rajendra Prasad Bhargava and others9, the Supreme Court

exposited the proposition as under:

"75.1 An application under Article 226 of the Constitution is maintainable against a person or a body discharging public duties or public functions. The public duty cast may be either statutory or otherwise and where it is otherwise, the body or the person must be shown to owe that duty or obligation to the public involving the public law element. Similarly, for ascertaining the discharge of public function, it must be established that the body or the person was seeking to achieve the same for the collective benefit of the public or a section of it and the authority to do so must be accepted by the public.

(emphasis supplied)

30. In the case at hand, incontrovertibly respondent No.2, the

employer of the petitioner, is a private enterprise, or for that

matter, none of the respondents answer the description of State

or the instrumentality of the State under Article 12 of the

Constitution of India. The question which thus wrenches to the

fore is, whether in the facts of the case, a writ would lie against

respondent Nos.1 and 2 on the premise that they were

performing a public function or discharging the public duty. The

thrust of the submission of Ms. Singhania was that ICC (R1)

was discharging a statutory duty involving a public law element

9 (2023) 4 Supreme Court Cases 498.

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and, therefore, the actions of respondent No.1, in particular, are

amenable to writ jurisdiction.

31. In the case of Ms. X (supra), on which reliance was placed

by Ms. Singhania, the Karnataka High Court held that in the

light of the statutory obligation cast on the employer to

constitute the Internal Complaints Committee for inquiring into

the complaint of sexual harassment and taking further actions

under the provisions of POSH Act, the employer did owe a duty

or obligation towards the public at large. Thus, the employer

and the ICC constituted by the employer cannot be heard to say

that they were not discharging any public duty involving, "public

law element", making them amenable to Article 226 of the

Constitution of India.

32. The aforesaid decision is required to be appreciated in the

backdrop of the facts of the said case. The petition arose, as

noted above, on account of refusal on the part of the employer

and ICC constituted by the employer to inquire into the

complaint of sexual harassment made by the petitioner therein

against the driver, on the ground that they lacked jurisdiction to

inquire into the complaint as the driver was not the "employee"

of OLA. The aforesaid enunciation of law, therefore, cannot be

WP(ST)15574-2025.DOC

construed de hors the factual backdrop in which it was

rendered.

33. In my considered view, a distinction would be required to

be drawn in cases where the ICC refuses to discharge statutory

duty to inquire into the complaint of sexual harassment in

accordance with the provisions of the POSH Act and Rules

therein and thereby fails to discharge its duty and obligation to

the public at large created by a statutory regime, and the cases

where the ICC allegedly conducts the inquiry not in conformity

with the provisions of the Act and the rules and the principles

of natural justice. In the later case, the infraction of the

procedure or the transgression of the jurisdiction, or for that

matter, the perversity in the findings, would be the matters

which can be legitimately raised before the Appellate Authority.

The legality, propriety and correctness of the findings recorded

by ICC would be examined by the Appellate Authority. An

incorrect finding or defect in procedure would not necessarily

amount to failure to discharge a public duty. At best, that

would be an error within the jurisdiction. Thus, I am not

inclined to accede to the submissions on behalf of the petitioner

that, in the facts of the case, the writ petition under Article 226

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of the Constitution of India would be maintainable against

respondent No.1 as it was discharging a public duty.

Maintainability of the petition in the face of alternate remedy:

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

impugned order on the count of failure to adhere to the

principles of natural justice. Under the scheme of POSH Act, the

recommendation made by the ICC is subject to an appeal under

Section 18 of the said Act before the Appellate Authority

constituted thereunder. Existence of an alternate remedy, it is

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

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

the availability of an alternate remedy, the writ Court is not

denuded of the power of judicial review and may exercise the

plenary writ jurisdiction. The situations in which a writ court

may exercise the jurisdiction, notwithstanding the availability of

an alternate remedy are also settled by a series of judgments. In

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

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

referring to the previous pronouncements, including the

decision of the Supreme Court in the case of Whirlpool

Corporation vs. Registrar of Trade Marks 10, enunciated that it

10 (1998) 8 SCC 1.
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has been consistently held that the alternate remedy would not

operate as a bar in at least three contingencies:

"(1) where the writ petition has been filed for the enforcement of any of the Fundamental Rights;

(2) where there has been a violation of the principle of natural justice; and (3) where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged."

35. At the same time, the Court cannot loose sight of the fact

that, ordinarily, the rule of existence of statutory remedy is

required to be adhered to as it is considered to be a rule of

policy, convenience and discretion. In cases, where a statutory

appeal is provided, especially in the very enactment under

which rights and obligations have been created and a machinery

is provided for enforcement of those rights and obligation, with a

provision of appeal, the writ court would be slow in exercising

the plenary jurisdiction, side-stepping the appellate forum.

36. In the case of Radha Krishan Industries vs. State of

Himachal Pradesh and others11, the Supreme Court summarized

the principles which emerge in the matter of exercise of writ

jurisdiction despite existence of the alternate remedy, as under:

"27. The principles of law which emerge are that :
11 (2021) 6 Supreme Court Cases 771.

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27.1 The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well; 27.2 The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

27.3 Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice;

(c) the order or proceedings are wholly without jurisdiction; or

(d) the vires of a legislation is challenged; 27.4 An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

27.5 When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and 27.6 In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."

(emphasis supplied)

37. The Supreme Court has emphasised that when a right is

created by a statute, which itself prescribes a remedy or

procedure for enforcing the right or liability, resort must be had

to that particular statutory remedy before invoking the

discretionary remedy under Article 226 of the Constitution as

the rule of exhaustion of statutory remedies is a rule of policy,

convenience and discretion.

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38. Keeping in view the aforesaid principles which govern the

exercise of writ jurisdiction, in the face of an express statutory

remedy of appeal, reverting to the facts of the case, the

substance of the grievance of the petitioner is that the petitioner

was not provided an effective opportunity of hearing as

there was breach of fundamental principles of natural justice,

primarily, on the ground that the petitioner was not provided

opportunity to cross-examine the complainant and the

witnesses and personal oral hearing was not given to the

petitioner.

39. Section 11 of the POSH Act makes provisions in relation to

inquiry into the complaint. The second proviso to sub-section

(1) of Section 11 provides that, where both parties are employed,

the parties shall during the course of inquiry be given an

opportunity of being heard and copy of the finding shall be

made available to both the parties enabling them to make

representation against the findings before the Committee. It

would be contextually relevant to note that Rule 7 of POSH

Rule, 2013 regulates manner of inquiry into the complaint. Sub-

rule (2) of Rule 7 mandates that a copy of the complaint be

served on the respondent, within a period of seven working

days. Sub-rule (3) of Rule 7 provides that the respondent shall

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file his reply to the complaint alongwith his list of documents

and names and addresses of witnesses within a period of ten

days. Sub-rule (4) mandates that the complaints committee

shall make inquiry into the complaint in accordance with the

principles of natural justice. Sub-rule (6) of Rule 7 debars the

appearance of the legal practitioner to represent a party. Under

the POSH Rules, 2013, there is no provision for recording of

evidence in a formal manner. Conversely, there is no prohibition

for recording the evidence by subjecting the witnesses to cross-

examine.

40. A conjoint reading of the provisions contained in Section

11 of the POSH Act and Rule 7 of the POSH Rules would

indicate that the Complaints Committee is duty bound to give

an opportunity of hearing to the parties. It is enjoined to adhere

to the principles of natural justice. However, the Complaints

Committee is not tethered by the strict rules of procedure and

evidence. The imperativeness of this regime of the Complaints

Committee being unshackled by the strict rules of procedure or

evidence becomes evident, if the object of the constitution of the

Complaints Committee and the nature of the function to be

performed by the Complaints Committee is kept in view.

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41. An inquiry by the Complaints Committee is essentially a

fact finding inquiry. In the case of Nisha Priya Bhatia vs. Union

of India and another12, the Supreme Court enunciated that the

legal machinery to deal with the complaint of sexual

harassment at work place is well delineated with the enactment

of POSH Act and Rules framed thereunder. The inquiry under

POSH Act is a separate inquiry of a fact-finding nature. Post

the conduct of the fact-finding inquiry under the POSH Act, the

matter goes before the department for a department inquiry

under the relevant departmental rules and, accordingly, action

follows.

42. A denial of right of cross-examination need not necessarily

cause such prejudice as to vitiate the inquiry, in every case.

Where there was no contest on the basic facts, absence of

formal opportunity of cross-examination per se may not vitiate

the decision. A useful reference, in this context, can be made to

the judgment of the Supreme Court in the case of K. L. Tripathi

vs. SBI13, wherein the Supreme Court enunciated the law as

under:

"29. We are of the opinion that Mr Garg is right that the rules of natural justice as we have set out hereinbefore implied an opportunity to the delinquent officer to give evidence in respect

12 (2020) 13 Supreme Court Cases 56.
13 (1984) 1 SCC 43.

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of the charges or to deny the charges against him. Secondly, he submitted that even if the rules had no statutory force and even if the party had bound himself by the contract, as he had accepted the Staff Rule, there cannot be any contract with a Statutory Corporation which is violative of the principles of natural justice in matters of domestic enquiry involving termination of service of an employee. We are in agreement with the basic submission of Mr Garg in this respect, but we find that the relevant rules which we have set out hereinbefore have been complied with even if the rules are read that requirements of natural justice were implied in the said rules or even if such basic principles of natural justice were implied, there has been no violation of the principles of natural justice in respect of the order passed in this case. In respect of an order involving adverse or penal consequences against an officer or an employee of Statutory Corporations like the State Bank of India, there must be an investigation into the charges consistent with the requirements of the situation in accordance with the principles of natural justice as far as these were applicable to a particular situation. So whether a particular principle of natural justice has been violated or not has to be judged in the background of the nature of charges, the nature of the investigation conducted in the background of any statutory or relevant rules governing such enquiries. Here the infraction of the natural justice complained of was that he was not given an opportunity to rebut the materials gathered in his absence. As has been observed in On Justice by J.R. Lucas, the principles of natural justice basically, if we may say so, emanate from the actual phrase "audi alteram partem"

which was first formulated by St. Augustine ( De Duabus Animabus, XIV, 22 J.P. Migne, PL. 42, 110).

.........

32. The basic concept is fair play in action administrative, judicial or quasi-judicial. The concept of fair play in action must depend upon the particular lis, if there be any, between the parties. If the credibility of a person who has testified or given some information is in doubt, or if the version or the statement of the person who has testified, is, in dispute, right of cross-examination must inevitably form part of fair play in action but where there is no lis regarding the facts but certain explanation of the circumstances there is no requirement of cross-examination to be fulfilled to justify fair play in action. When on the question of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order, by absence of any formal opportunity of cross-examination per se does not invalidate or vitiate the decision arrived at fairly. This is more so when the party against whom an order has been passed does not dispute the facts and does not demand to test the veracity of the version or the credibility of the statement.

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33. The party who does not want to controvert the veracity of the evidence from record or testimony gathered behind his back cannot expect to succeed in any subsequent demand that there was no opportunity of cross-examination specially when it was not asked for and there was no dispute about the veracity of the statements. Where there is no dispute as to the facts, or the weight to be attached on disputed facts but only an explanation of the acts, absence of opportunity to cross- examination does not create any prejudice in such cases."

(emphasis supplied)

43. On the aforesaid touchstone, re-adverting to the facts of

the case, on a prima facie appraisal of the matter, (being

cognizant of the fact that the petitioner has a statutory remedy

of appeal, and with a view to obviate expression of opinion on

the merits of the matter) this Court finds that the petitioner had

objected to the findings at Items 1, 4, 5, 13, 14 and 15 of Part III

of the Preliminary Findings Report, and the petitioner had

admitted the incidents, as such, referred to in Items 1, 4, 5 and

13. The ICC held the incident referred to in Item 14, was proved

on the basis of the statement of the witnesses. Whereas qua

Item 15, it was recorded that the allegation was inconclusive.

44. The situation which, thus, emerges is that the basic facts

referred to in Items 1, 4, 5 and 13 were not disputed though the

intent of the petitioner and the inferences drawn by the

Committee may be put in contest. In these circumstances, this

Court is of the considered view that the denial of the

opportunity to cross-examine the witnesses did not cause such

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prejudice as would warrant jettisoning away of the inquiry

overboard, in exercise of the writ jurisdiction.

45. Likewise, the ground that, no oral hearing was given to the

petitioner and, therefore, there was denial of an effective

opportunity of hearing, cannot be countenanced unreservedly.

It is not obligatory that, in every case, the aggrieved person

must be provided oral hearing. In the case at hand, there is

material to indicate that the petitioner was served with the

preliminary findings and given an opportunity to make

representation against those preliminary findings. A useful

reference can be made to the judgment of the Supreme Court in

the case of Dharampal Satyapal Ltd. vs. Dy. Comm. Of Central

Excise, Gauhati and Ors.14. The observations in paragraph 38

are instructive and, hence, extracted below:
"38. But that is not the end of the matter. While the law on the principle of audi alteram partem has progressed in the manner mentioned above, at the same time, the courts have also repeatedly remarked that the principles of natural justice are very flexible principles. They cannot be applied in any straitjacket formula. It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of the case, not only full-fledged oral hearing but even cross-examination of witnesses is treated as a necessary concomitant of the principles of natural justice. Likewise, in service matters relating to major punishment by

14 (2015) 8 SCC 519.

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way of disciplinary action, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules as well. On the other hand, in those cases where there is an admission of charge, even when no such formal inquiry is held, the punishment based on such admission is upheld. It is for this reason, in certain circumstances, even post-decisional hearing is held to be permissible. Further, the courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on."

(emphasis supplied)

46. In the case of State of Uttar Pradesh vs. Sudhir Kumar

Singh and others15, a three-Judge Bench of the Supreme Court

exhaustively dealt with the effect of violation of the principles of

natural justice and summarized the principles as under:

"42.1 Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused. 42.1 Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest. 42.3 No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice.

42.4 In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person.
15 (2021)19 SCC 706.

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42.5 The "prejudice" exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice. flowing from the non- observance of natural justice."

(emphasis supplied)

47. The conspectus of aforesaid consideration is that the facts

of the case are not such as would warrant the exercise of writ

jurisdiction, despite the availability of the statutory remedy of

appeal. Resultantly, the petition deserves to be dismissed.

48. Since the petitioner was bona fide prosecuting this

petition, the Court considers it appropriate to direct that, in the

event the petitioner files an appeal within a period of four weeks

from today, the time spent by the petitioner in prosecuting this

petition may be accounted for in case the question of limitation

arises.

49. Hence, the following order:

:ORDER:
(i)       The petition stands dismissed.

(ii)      In the event the petitioner files an appeal under Section
18 of the POSH Act, within a period of four weeks from

today, the time spent by the petitioner in prosecuting this

petition may be accounted for, if the question of limitation

arises.

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

aforesaid consideration is confined to determine the

tenability of the petition and this Court may not be

understood to have expressed any opinion of the merits of

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

contentions of all the parties would be open for

consideration by the Appellate Authority, and the

Appellate Authority shall decide the appeal on its own

merits and in accordance with law, without being

influenced by any of the observations made hereinabove.

(iv) In view of disposal of the writ petition, IA/8040/2025

also stands disposed.

[N. J. JAMADAR, J.]