Jharkhand High Court
Renu Oraon vs State Of Jharkhand on 3 April, 2024
Author: Navneet Kumar
Bench: Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Letters Patent Appellate Jurisdiction)
L.P.A. No. 587 of 2023
Renu Oraon, D/o Lakhan Oraon, aged about 29 years, R/o Village Negai, PO
Kaima, PS Latehar, District-Latehar (Jharkhand)
... ... ... Appellant/Petitioner
Versus
1. State of Jharkhand, through Secretary, Department of Home, Jail and
Disaster Management, situated at : Project Building, PO & PS -Dhurwa,
District Ranchi, Jharkhand (Respondent No.1)
2. IG Prisons, at: PO and PS Dhurwa, District Ranchi (Respondent No.2)
3. Superintendent, District Jail Latehar, situated at: Bariatukhalsa, PO & PS
& District Latehar, Jharkhand 829206 (Respondent No.3)
4. Deputy Commissioner, Latehar, situated at : Bariatukhalsa, PO & PS &
District Latehar, Jharkhand 829206 (Respondent No.4)
... ... ... Respondents/Respondents
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant: Mr. Shailesh Poddar, Advocate
For the State: Mr. Ashish Kumar, A.C. to S.C.(Mines)-II
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3rd April 2024
Per, Shree Chandrashekhar, A.C.J.
The appellant, a Home Guard, who was deputed at Latehar
District Jail in the Female Ward alleging sexual harassment approached the
writ Court for constitution of the Internal Complaint Committee under
Section 4 of the Sexual Harassment of Women at Workplace (Prevention,
Prohibition & Redressal) Act, 2013.
2. During pendency of the writ petition being W.P(C) No.5457 of
2022, the Internal Complaint Committee was constituted and the writ petition
was dismissed observing that she shall be at liberty to challenge the decision
of the Internal Complaint Committee, if aggrieved thereby.
3. The aforementioned observation by the writ Court indicates, and
it had in fact happened before the writ Court, that the appellant raised
objection to constitution of the Internal Complaint Committee but the writ
petition was dismissed.
4. Now a preliminary objection is taken on behalf of the State of
Jharkhand that the constitution of the Internal Complaint Committee cannot be
challenged by the appellant in the present proceeding.
5. Mr. Ashish Kumar, the learned State counsel submits that the
Letters Patent Appeal being in continuation to the writ proceeding, the
prayer(s) made in the writ petition only can be seen and the constitution of
Internal Complaint Committee cannot be challenged on whatsoever ground
because that was not the issue before the writ Court.
6. To challenge the constitution of the Internal Complaint
Committee, Mr. Shailesh Poddar, the learned counsel for the appellant has
referred to the decision in L.P.A. No. 118 of 2013 titled "Agros Impex India
Private Limited Vs. The State of Jharkhand & Ors"; and L.P.A. No. 256 of
2011 titled "Kamal Prasad and Ors. Vs. The State of Jharkhand & others" to
submit that the Constitutional Court can mold the relief in an appropriate case.
The learned counsel for the appellant refers to Order VII Rule 7 of the Code of
Civil Procedure to buttress his submission that in the given facts, more
particularly a real likelihood of bias on the part of Mrs. Priti Sinha and
Mrs. Nutan Kujur, the writ Court's order is liable to be set aside and,
consequently, the constitution of the Committee may also be quashed.
7. In "Pasupuleti Venkateswarlu v. Motor and General Traders"
(1975) 1 SCC 770 the Hon'ble Supreme Court held as under:
"4. .... It is basic to our processual jurisprudence that the right to relief
must be judged to exist as on the date a suitor institutes the legal
proceeding. Equally clear is the principle that procedure is the
handmaid and not the mistress of the judicial process. If a fact, arising
after the lis has come to court and has a fundamental impact on the
right to relief or the manner of moulding it, is brought diligently to the
notice of the tribunal, it cannot blink at it or be blind to events which
stultify or render inept the decretal remedy. Equity justifies bending
the rules of procedure, where no specific provision or fairplay is
violated, with a view to promote substantial justice -- subject, of
course, to the absence of other disentitling factors or just
circumstances. Nor can we contemplate any limitation on this power
to take note of updated facts to confine it to the trial court. If the
litigation pends, the power exists, absent other special circumstances
repelling resort to that course in law or justice. Rulings on this point
are legion, even as situations for applications of this equitable rule are
myriad. We affirm the proposition that for making the right or remedy
claimed by the party just and meaningful as also legally and factually
in accord with the current realities, the Court can, and in many cases
must, take cautious cognisance of events and developments
subsequent to the institution of the proceeding provided the rules of
fairness to both sides are scrupulously obeyed. ...."
8. Before the writ Court, the State of Jharkhand filed a counter-
affidavit informing the Court that on 20th May 2022 a Committee of three
members viz. (i) Mr. Menson Barwa, who was the Jail Superintendent
(ii) Mrs. Nutan Kujur, who was the lady Warden and (iii) Mrs. Sukeshi Gidh,
who was posted as A.N.M. was constituted at Latehar Jail. However, the
appellant raised objection to the constitution of the said Committee primarily
on the ground that the Committee was headed by a male person and, that,
there was no representation from a person engaged in NGO. In response
thereto, another Internal Complaint Committee was constituted vide office
order dated 23rd March 2023 replacing the members of the previous
Committee. According to the appellant, the members constituting the present
Committee are biased towards her and, therefore, she filed reply affidavit
stating that Smt. Kalpana Tiwari cannot be considered as an independent
member because she was part of the Juvenile Justice Board, Latehar. As to
Smt. Priti Sinha and Smt. Nutan Kujur being part of the Internal Complaint
Committee, the objection taken by the appellant is that they conducted an
enquiry on a previous occasion and gave a report against her. The appellant
has also raised objection against Mr. Pradeep Munda being part of the Internal
Complaint Committee on the ground that she made oral complaint to him but
he did not take any action thereon.
9. However, the writ petition was dismissed observing as under:
" ... ... ...
In view of the fair submission of the respondents-State, nothing
remains to be adjudicated, hence this writ petition is dismissed.
However, petitioner is at liberty to challenge the decision of the
committee, if any.
Accordingly, the instant writ petition is dismissed."
10. In "Vishaka Vs. State of Rajasthan, (1997) 6 SCC 241 & Ors"
(1997) 7 SCC 323, the Hon'ble Supreme Court re-affirmed that sexual
harassment at work place is a form of discrimination against women and
violates her Constitutional rights to equality. The Hon'ble Supreme Court
observed as under:
"3. Each such incident results in violation of the fundamental rights
of "Gender Equality" and the "Right to Life and Liberty". It is a clear
violation of the rights under Articles 14, 15 and 21 of the Constitution.
One of the logical consequences of such an incident is also the
violation of the victim's fundamental right under Article 19(1)(g) "to
practise any profession or to carry out any occupation, trade or
business". Such violations, therefore, attract the remedy under Article
32 for the enforcement of these fundamental rights of women. This
class action under Article 32 of the Constitution is for this reason. A
writ of mandamus in such a situation, if it is to be effective, needs to
be accompanied by directions for prevention, as the violation of
fundamental rights of this kind is a recurring phenomenon. The
fundamental right to carry on any occupation, trade or profession
depends on the availability of a "safe" working environment. Right to
life means life with dignity. The primary responsibility for ensuring
such safety and dignity through suitable legislation, and the creation
of a mechanism for its enforcement, is of the legislature and the
executive. When, however, instances of sexual harassment resulting in
violation of fundamental rights of women workers under Articles 14,
19 and 21 are brought before us for redress under Article 32, an
effective redressal requires that some guidelines should be laid down
for the protection of these rights to fill the legislative vacuum."
11. The Sexual Harassment of Women at Workplace (Prevention,
Prohibition & Redressal) Act, 2013 (in short, Act of 2013) has been enacted to
provide protection against sexual harassment of women at workplace and for
the prevention and redressal of the complaint of sexual harassment and for the
matters connected therewith or incidental thereto. The preamble to the Act of
2013 recites that the sexual harassment of a women at workplace results in
violation of a fundamental rights under Articles 14 and 15 of the Constitution
of India and her right to life and to live with dignity under Article 21.
12. Now this is not in dispute that Smt. Priti Sinha and Smt. Nutan
Kujur had conducted an enquiry on a complaint made against the appellant.
This is also a fact appearing from the office order dated 23rd March 2023 that
Smt. Kalpana Tiwari is a member of Juvenile Justice Board, Latehar which in
view of the judgment rendered by the Hon'ble Supreme Court in "Punjab &
Sind Bank Vs. Durgesh Kuwar" (2020) 19 SCC 46 shall violate the provisions
under Clause (c) of Section 4(2) of the Act of 2013. In "Durgesh Kuwar" the
Hon'ble Supreme Court observed as under:
"23. Clause (c) of Section 4(2) indicates that one member of the ICC
has to be drawn from amongst a non-governmental organisation or
association committed to the cause of women or a person familiar with
issues relating to sexual harassment. The purpose of having such a
member is to ensure the presence of an independent person who can
aid, advise and assist the Committee. It obviates an institutional bias.
During the course of hearing, we have received a confirmation from the
learned Senior Counsel appearing on behalf of the bank that Ms Seema
Gupta was, in fact, a panel lawyer of the bank at the material time. This
being the position, we see no reason or justification on the part of the
bank not to accede to the request of the respondent for replacing
Ms Seema Gupta with a truly independent third-party having regard to
the provisions of Section 4(2)(c) of the Act. This is a significant facet
which goes to the root of the constitution of the ICC which was set up
to enquire into the allegations which were levelled by the respondent."
13. Section 4 to the Act of 2013 is extracted below:
"4. Constitution of Internal Complaints Committee.--(1) Every
employer of a workplace shall, by an order in writing, constitute a
Committee to be known as the "Internal Complaints Committee":
Provided that where the offices or administrative units of the
workplace are located at different places or divisional or sub-divisional
level, the Internal Committee shall be constituted at all administrative
units or offices.
(2) The Internal Committee shall consist of the following
members to be nominated by the employer, namely--
(a) a Presiding Officer who shall be a woman employed at a
senior level at workplace from amongst the employees:
Provided that in case a senior level woman employee is not
available, the Presiding Officer shall be nominated from other offices
or administrative units of the workplace referred to in sub-section (1):
Provided further that in case the other offices or administrative
units of the workplace do not have a senior level woman employee, the
Presiding Officer shall be nominated from any other workplace of the
same employer or other department or organisation;
(b) not less than two Members from amongst employees
preferably committed to the cause of women or who have had
experience in social work or have legal knowledge;
(c) one member from amongst non-governmental organisations
or associations committed to the cause of women or a person familiar
with the issues relating to sexual harassment:
Provided that at least one-half of the total Members so nominated
shall be women.
(3) The Presiding Officer and every Member of the Internal
Committee shall hold office for such period, not exceeding three years,
from the date of their nomination as may be specified by the employer.
(4) The Member appointed from amongst the non-governmental
organisations or associations shall be paid such fees or allowances for
holding the proceedings of the Internal Committee, by the employer, as
may be prescribed.
(5) Where the Presiding Officer or any Member of the Internal
Committee,--
(a) contravenes the provisions of Section 16; or
(b) has been convicted for an offence or an inquiry into an
offence under any law for the time being in force is pending against
him; or
(c) he has been found guilty in any disciplinary proceedings or a
disciplinary proceeding is pending against him; or
(d) has so abused his position as to render his continuance in
office prejudicial to the public interest,
such Presiding Officer or Member, as the case may be, shall be
removed from the Committee and the vacancy so created or any casual
vacancy shall be filled by fresh nomination in accordance with the
provisions of this section.
14. By now this is a well settled proposition in law that any
aggrieved party must have a fair opportunity to present his case. This is also
well settled that the concept of bias is integral part of the rules of natural
justice. The Hewartian theory that justice must not only be done but seen to
have been done was adopted long back in the criminal jurisprudence. A person
against whom an apprehension of likelihood of bias is made should not be
made a part of the Internal Complaint Committee. In "S. Parthasarathi Vs.
State of A.P." (1974) 3 SCC 459 the Hon'ble Supreme Court held as under:
"16. The tests of "real likelihood" and "reasonable suspicion" are really
inconsistent with each other. We think that the reviewing authority must
make a determination on the basis of the whole evidence before it,
whether a reasonable man would in the circumstances infer that there is
real likelihood of bias. The Court must look at the impression which
other people have. This follows from the principle that justice must not
only be done but seen to be done. If right minded persons would think
that there is real likelihood of bias on the part of an inquiring officer, he
must not conduct the enquiry; nevertheless, there must be a real
likelihood of bias. Surmise or conjecture would not be enough. There
must exist circumstances from which reasonable men would think it
probable or likely that the inquiring officer will be prejudiced against
the delinquent. The Court will not inquire whether he was really
prejudiced. If a reasonable man would think on the basis of the existing
circumstances that he is likely to be prejudiced, that is sufficient to
quash the decision [see per Lord Denning, H.R. in Metropolitan
Properties Co. (F.G.C.) Ltd. v. Lannon] We should not, however, be
understood to deny that the Court might with greater propriety apply the
"'reasonable suspicion" test in criminal or in proceedings analogous to
criminal proceedings."
15. In yet another decision, in "P.D. Dinakaran (1) Vs. Judges
Inquiry Committee" (2011) 8 SCC 380 the Hon'ble Supreme Court held as
under:
"71. The principles which emerge from the aforesaid decisions are that
no man can be a judge in his own cause and justice should not only be
done, but manifestly be seen to be done. Scales should not only be held
even but they must not be seen to be inclined. A person having interest
in the subject-matter of cause is precluded from acting as a Judge. To
disqualify a person from adjudicating on the ground of interest in the
subject-matter of lis, the test of real likelihood of the bias is to be
applied. In other words, one has to enquire as to whether there is real
danger of bias on the part of the person against whom such
apprehension is expressed in the sense that he might favour or disfavour
a party. In each case, the court has to consider whether a fair-minded
and informed person, having considered all the facts would reasonably
apprehend that the Judge would not act impartially. To put it
differently, the test would be whether a reasonably intelligent man fully
apprised of all the facts would have a serious apprehension of bias. In
cases of non-pecuniary bias, the "real likelihood" test has been
preferred over the "reasonable suspicion" test and the courts have
consistently held that in deciding the question of bias one has to take
into consideration human probabilities and ordinary course of human
conduct. We may add that real likelihood of bias should appear not only
from the materials ascertained by the complaining party, but also from
such other facts which it could have readily ascertained and easily
verified by making reasonable inquiries.
16. Having regard to the aforementioned facts and circumstances, we
nominate Mrs. Preity Sinha, a practicing lawyer of this Court to be part of the
Internal Complaint Committee as its member. We also direct the Deputy
Commissioner, Ranchi to nominate the remaining three members who shall
comprise the Internal Complaint Committee with Mrs. Preity Sinha, the
learned counsel. We expect that the Internal Complaint Committee shall be
constituted by 31st May 2024. The sittings of the Committee shall be held at
Ranchi.
17. With the aforesaid direction, this Letters Patent Appeal is
disposed of. Mrs. Preity Sinha, the learned counsel shall be paid Rs. 5,500/-
per sittings of the Committee. The payment shall be made by the Deputy
Commissioner, Ranchi.
(Shree Chandrashekhar, A.C.J.)
(Navneet Kumar, J.)
VK
N.A.F.R.
