Punjab And Sind Bank Thr. Shri ... vs Local Complaints Commitee
2023 Latest Caselaw 17336 MP

                                   - : 1 :-
                                                      W.P. Nos. 23858/2019,
                                                   20489/2019 & 25127/2019



HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
   (SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)

                         W.P. No. 23858/2019
      (PANKAJ DWIVEDI V/s. LOCAL COMPLAINTS COMMITTEE &
                            ANOTHER )

                         W.P. No. 20489/2019
     (DR. FAREED AHMED V/s. LOCAL COMPLAINTS COMMITTEE &
                            ANOTHER)

                         W.P. No. 25127/2019
(PUNJAB AND SIND BANK V/s. LOCAL COMPLAINTS COMMITTEE &
                        ANOTHER)

Date: 17.10.2023 :
       Shri Amit S. Agrawal, learned Sr. Advocate for the petitioners
in the aforesaid writ petitions.
       Shri Rama Nath Jha, learned counsel for respondent No.2.

1. Heard on the question of preliminary objection about maintainability of this petition for want of alternative remedy.

The petitioner has filed the present petition being aggrieved by final report dated 17.6.2019 submitted by the Local Complaint Committee.

2. After issuance of notice, the respondents have filed the reply. Thereafter, rejoinder, additional reply, etc. have been filed. The petition is ripe for final hearing. But, on the last number of occasions, respondent No.2 appearing in person used to raise an objection about maintainability of the petition for want of alternative remedy of appeal available u/s. 18 of Sexual Harassment of Woman at Work Place (Prevention, Prohibition & Redressal) Act, 2013 (hereinafter referred to as "the Act of 2013"), hence all these

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W.P. Nos. 23858/2019, 20489/2019 & 25127/2019

three writ petitions are being taken up to decide this issue and all pending applications.

3. Learned counsel appearing on behalf of respondent No.2 submits that the petitioner in all the three writ petitions have directly approached this Court without resorting to the remedy available u/s. 18 of the Act of 2013, therefore, these writ petitions are liable to be dismissed. He further submits that the Internal Complaint Committee (ICC) constituted u/s. 4 of the Act of 2013 by the employer wrongly exonerated the petitioners when its composition was itself not as per the provisions of Section 4. Learned counsel for respondent No.2 has referred to the judgment passed by the apex Court between the Punjab & Sind Bank V/s. Ms. Durgesh Kunwar (Civil Appeal No.1809/2020) and in Para 23 of the judgment, the apex Court has held that there was a fundamental defect in the constitution of ICC which was set up by the Bank, therefore, these petitions be dismissed on this ground alone.

4. Shri Amit S. Agrawal, learned senior counsel appearing for the petitioners submits that the availability of an alternative remedy is not an absolute bar for the High Court for entertaining the writ petition filed under Article 226 of the Constitution of India. In support of his contention, he has placed reliance on the judgments passed by the apex Court in the case of Executive Engineer, Southern Electricity Supply Co. of Orissa Ltd. (SOUTHCO) V/s. Sri Seetaram Rice Mill : (2012) 2 SCC 108 in which the apex Court was of the considered view that interest of administration of

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W.P. Nos. 23858/2019, 20489/2019 & 25127/2019

justice shall be better subserve if the cases of present kind are heard by the Court only where they involve primary question of jurisdiction or the matter which goes to the very root of the jurisdiction and where the authority has acted beyond the provisions of the Act. He has also referred to the judgment of the apex Court in the case of Magadh Sugar & Energy Ltd. V/s. State of Bihar : (2021) SCC OnLine SC 801. Learned senior counsel further submits that u/s. 18 of the Act of 2013, any person aggrieved by the recommendation made under sub-section (2) of Section 13 or under Clause (i) and (ii) of sub-section (3) of Section 13 may prefer an appeal to a Court or Tribunal in accordance with the provisions of Service Rules applicable to the said person. In the present case, for the petitioners there is no Service Rules looking to their designation. Section 18 of the Act of 2013 further says that where no such service rules exist, then the person aggrieved may prefer an appeal in such manner as may be prescribed. Rule 11 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (hereinafter referred to as "the Rules of 2013") provides that a person aggrieved may prefer an appeal to an appellate authority notified under Clause (a) of Section 2 of Industrial Employment (Standing Orders) Act, 1946. Neither Central Government nor State Government has notified any authority under this Act. Therefore, the petitioners cannot prefer any appeal as there is no forum established for them.

5. The main contention of the counsel appearing for respondent No.2 is that the petitioners cannot take shelter of the order passed

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W.P. Nos. 23858/2019, 20489/2019 & 25127/2019

by the ICC and as per the findings given by the apex Court in the case of Punjab & Sind Bank (supra) i.e. the constitution of the ICC suffers from fundamental defect.

6. Respondent No.2 had filed a writ petition (W.P. No.9048/2018) challenging the order passed by the ICC in favour of the petitioners, but chosen to withdraw the said writ petition. The validity of the report given by the ICC has attained finality as it is not challenged by respondent No.2. In these petitions, the interpretation of Section 6 and Section 9 are under consideration. Section 6 says that every District Officer shall constitute in the district concerned a committee to be known as the "Local Committee" to receive complaints of sexual harassment from establishments where the Internal Committee has not been constituted due to having less than ten workers or if the complaint is against the employer himself. In the present case, in Punjab & Sindh Bank there is already a constituted Internal Complaint Committee. Section 9 of the Act of 2013 also says that any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee, if so constituted, or the Local Committee, in case it is not so constituted. Respondent No.2 initially did approach to the ICC and thereafter approached the LCC. Even otherwise, the appeal u/s. 18 is liable to be heard by the Court or Tribunal in accordance with the service rules applicable to the said person. In the present case, even the services rules are there in Punjab & Sind Bank but the Bank itself has challenged the order passed by the LCC. Therefore, respondent

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W.P. Nos. 23858/2019, 20489/2019 & 25127/2019

No.2 may raise an objection that the Bank being an employer should not have heard the appeal because the Bank itself is challenging the order passed by the LCC. Hence, in such peculiar facts and circumstances of these three writ petitions, the remedy of appeal cannot be said to be an efficacious remedy. Even otherwise, the applicability of Section 4, 6 and 9 of the Act of 2013 is required to be considered by the High Court in given facts and circumstances.

7. In view of the above, I.A. No. 2052/2023 filed in W.P. No.20489/2019; I.A. No. 2053/2023 filed in W.P. No.23858/2019; and I.A. No. 2051/2023 filed in W.P. No.25127/2019, applications for vacating stay are misconceived and accordingly dismissed.

The interim relief granted by this Court in favour of the petitioners is hereby made absolute.

Writ petitions are admitted for final hearing. List for final hearing in due course. Let a photocopy of this order be kept in the file of connected writ petitions.

( VIVEK RUSIA ) JUDGE Alok/-

Digitally signed by ALOK GARGAV Date: 2023.10.20 14:07:44 +05'30'