Madhya Pradesh High Court
Dr.Fareed Ahmed vs Local Complaints Committee Women And ... on 8 April, 2025
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
NEUTRAL CITATION NO. 2025:MPHC-IND:9605 1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 8th OF APRIL, 2025
WRIT PETITION No. 20489 of 2019
DR.FAREED AHMED AND OTHERS
Versus
LOCAL COMPLAINTS COMMITTEE WOMEN AND CHILD
DEVELOPMENT DEPARTMENT AND OTHERS
Appearance:
Shri Ravindra Singh Chhabra, senior advocate with Shri
Devaasheesh Dubey, learned counsel for the petitioners.
Shri Bhuwan Deshmukh, learned Government Advocate appearing
on behalf of Advocate General.
Shri Prashant Bhushan, senior advocate with Shri Amit Kumar
Washinde, learned counsel for the respondent No.2.
WITH
WRIT PETITION No. 23858 of 2019
PANKAJ DWIVEDI
Versus
LOCAL COMPLAINTS COMMITTEE AND OTHERS
Appearance:
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 09-04-2025
14:03:35
NEUTRAL CITATION NO. 2025:MPHC-IND:9605 2
Shri Amit Agrawal, senior advocate with Shri Aditya Goyal,
learned counsel for the petitioner.
Shri Bhuwan Deshmukh, learned Government Advocate appearing
on behalf of Advocate General.
Shri Prashant Bhushan, senior advocate with Shri Amit Kumar
Washinde, learned counsel for the respondent No.2.
WRIT PETITION No. 25127 of 2019
PUNJAB AND SIND BANK THR. SHRI SUBHAN SINGH S/O KAL
SINGH
Versus
LOCAL COMPLAINTS COMMITEE AND OTHERS
Appearance:
Shri Ravindra Singh Chhabra, senior advocate with Shri
Devaasheesh Dubey, learned counsel for the petitioner.
Shri Bhuwan Deshmukh, learned Government Advocate appearing
on behalf of Advocate General.
Shri Prashant Bhushan, senior advocate with Shri Amit Kumar
Washinde, learned counsel for the respondent No.2.
...........................................................................................................
Reserved on : 03.03.2025
Pronounced on : 08.04.2025
...........................................................................................................
ORDER
Heard finally.
1] This order shall also govern the disposal of WP Nos.20489/2019,
23858/2019 and 25127/2019 as all these three petitions have arisen out of
the same order passed by the Local Complaints Committee (hereinafter
referred to as LCC) dated 17/06/2019, pursuant to a complaint made by
respondent No.2 Smt. Durgesh Kuwar regarding her sexual harassment at
workplace.
2] In W.P. No.25127/2019, which has been filed by Punjab & Sind
Bank, one more order dated 08/07/2019 has also been challenged in
which, a fine of Rs.50,000/- has been imposed on the Bank on account of
non-formation of Internal Complaint Committee.
For the sake of convenience, the facts as narrated in W.P. No.20489/2019
are being taken into consideration.
3] This writ petition has been filed by the petitioners under Article 226
of the Constitution of India seeking the following reliefs:-
1. "A writ of certiorari be issued and the record be called from the Local
Complaints Committee and the entire proceedings carried out by Local
Complaints Committee be quashed.
2. Appropriate Writ/order/direction be issued to quash/set aside the Report
dated 17/06/2019 and its recommendations issued by the Local Complaints
Committee.
3. Appropriate Writ/order/direction be issued to dismiss the complaint dated
08/01/2019 filed by Smt. Durgesh Kuwar against the Petitioners before the
Local Complaints Committee.
4. Appropriate Writ/order/direction be issued to award the cost of the present
Writ Petition.
5. Any other relief which this Hon'ble Court deems fit may kindly be
granted."
4] The petitioners are aggrieved by the recommendations made by the
Local Complaints Committee (LCC) allegedly constituted under the
provisions of Sexual Harassment at Workplace (Prevention, Prohibition
and Redressal) Act, 2013, vide its order dated 17/06/2019. On the basis of
the complaint filed by respondent No.2 on 08/01/2019 alleging her sexual
harassment on workplace as respondent No.2 happens to be an employee
of Punjab & Sind Bank and was posted as Chief Manager at P.Y. Road
Branch, Indore.
5] The brief the facts of the case as narrated in this writ petition are as
under:-
The present Writ Petition is filed for quashment of the proceedings and
Final Report dated 17.06.2019 (Annexure- P/47) of the Local Complaints
Committee constituted under Section 6 of the Sexual Harassment at
Workplace (Prevention, Prohibition and Redressal) Act, 2013, issued upon
the complaint of the Respondent no. 2 i.e. Smt. Durgesh Kuwar, the Chief
Manager of P. Y. Road branch, Indore lodged against Mr. Pankaj Dwivedi,
the then Zonal Manger of Punjab & Sind Bank, Bhopal as well as upon the
complaint lodged by her against the Petitioners alleging, inter alia, that the
Petitioners did not take any action upon the complaint of the Respondent
no. 2 in respect of misbehaviour done by her immediate superior officer
Mr. Pankaj Dwivedi and in a conspiracy protected him.
Local Complaints Committee prepared the impugned Final Report dated
17.06.2019, whereby it declared the Report of ICC dated 26.02.2019 as
void ab initio and recorded findings to the extent that Mr. Pankaj Dwivedi
is guilty of committing sexual harassment with the Respondent no. 2 and
the Petitioners are also liable for supporting Mr. Pankaj Dwivedi by not
taking any action upon the oral and written complaints of the Respondent
no. 2 thereby, creating hostile work environment for her and committed
humiliating treatment likely to affect her health and safety. The LCC
recommended a fine of Rs. 50,000/- for not having Internal Complaints
Committee at Indore and constituting ICC at Delhi by declaring the same
in violation of the provisions of the Act, 2013. The LCC recommended for
immediate posting of the Respondent no. 2 as branch manager of Punjab &
Sind Bank, P.Y. Road branch, Indore. The LCC further recommended for
taking disciplinary action against the Petitioners and Mr. Pankaj Dwivedi
as per the Service Rules for the acts of sexual harassment. The LCC further
advised to grant 90 days leave to the Respondent no. 2 under the Act,
2013. LCC also advised to the employer to consider her
representation against non-promotion on merits. Lastly, the LCC
recommended that the Bank should be penalised for non-cooperation and
non-adherence of provisions of the POSH, Act by planting 200 trees in
Green Belt between Hawa Bangla to CAT Road, Indore and advised to
take care of the plants by guarding them tree guards thereby ensuring that
plants to sustain.
The petitioners are challenging the proceedings and Report dated
17.06.2019 of the Local Complaints Committee on the various, inter alia,
that the Internal Complaints Committee constituted under Section 4 of the
Act, 2013 had already given its Report on 26.02.2019 and LCC was not
having any jurisdiction to entertain the complaint of Smt. Durgesh Kuwar,
the complaint was time barred, there was no whisper about the alleged
sexual harassment in the earlier petition filed by the the respondent no. 2
bearing W.P. no. 9048/2018 and in all previous correspondence with the
higher officers, no personal notice was served upon all the Respondents
therein, copies of the complaint, statement and documents were not served
personally upon all the Respondents therein, the LCC did not wait till
decision of Writ Petition no. 7962/2019 pending before this Hon'ble Court,
the complaint does not disclose any allegation of harassment against the
Petitioners much less the act of sexual harassment as defined under Section
2 (n) of the Act, 2013, the Petitioners are not covered under the definition
of employer. The LCC by conducting and concluding the enquiry
proceedings in such a manner, violated the Service Rules as well the
principles of natural justice of the Petitioners. The whole proceedings
before the LCC were void ab initio and contrary to the provisions of the
Act, 2013."
6] In addition to the above, it is also the case of the petitioners that
while the dispute was going on between the petitioners and respondent
No.2, she was transferred vide order dated 14/12/2017, which was
challenged by her in WP No.9048/2018 which was decided on
17/04/2018. The said writ petition was allowed by this Court vide order
dated 11/12/2019, quashing the order of transfer, against which, the Bank
also preferred Writ Appeal No.377/2019, which was dismissed on
18/03/2019 affirming the order passed by the Single Bench. The order
passed by the Division Bench on 18/03/2019 was then taken by Punjab &
Sind Bank to the Supreme Court in Civil Appeal No.1809/2020, which
was dismissed by the Supreme Court vide its judgement dated
25/02/2020, affirming the orders passed by the division bench of this
Court. In its decision, the Supreme Court has also reflected heavily upon
the constitution of Internal Complaints Committee (ICC) by the Bank and
has also observed that there was a fundamental defect in the constitution
of ICC which was set up by the Bank.
7] It is further the case of the petitioners that admittedly, prior to the
aforesaid order dated 25.02.2020, passed by the Supreme Court, the ICC
had already given its final report on 26/02/2019 and had exonerated the
petitioners. Against the aforesaid order, respondent No.2 also preferred
W.P. No.7962/2019 on 11/04/2019, alleging lack of jurisdiction of ICC,
however, during the pendency of the aforesaid petition, since the
respondent No.2 had already initiated a parallel proceeding before the
Local Complaints Committee, the Local Complaints Committee also gave
its report in favour of respondent No.2 in its order dated 17/06/2019, and
thereafter, the WP No.7962/2019 which was filed by the respondent no.2
against the order of ICC dated 26/02/2019 was withdrawn on 07/08/2019,
with liberty to file fresh petition, if the occasion arises.
8] The petitioner's contention is that the report prepared by the ICC
has attained finality on account of withdrawal of writ petition WP
No.7962/2019 by respondent No.2. Whereas, the constitution of Local
Complaints Committee itself was void-ab-initio as admittedly, there was
an internal complaint committee already constituted by the Bank, whereas
according to Section 9 of the Act of 2013 a local committee can only be
constituted if ICC is not so constituted by the employer.
9] The arguments have also been advanced at length by the learned
counsel appearing for the rival parties. It has been primarily argued by the
learned senior counsel for the petitioner that the observations made by the
Supreme Court in Civil Appeal No.1809/2020 which had arisen out of the
transfer order of respondent No.2, regarding the constitution of ICC are
obiter dictas only and are not the ratio of the aforesaid decision, hence,
the aforesaid observations regarding ICC have to be ignored by this Court
being the obiter. In support of his submissions, Shri Amit Agrawal,
learned senior counsel appearing for the petitioners has also drawn the
attention of this Court to the Constitution Bench Judgment comprising of
9 Judges in the case of Property Owners Association and others vs. State
of Maharashtra and others reported in 2024 SCC OnLine SC
3122( para 111 to 114) and it is submitted that this Court is also required
to apply the inversion test as noted by the Supreme Court in para 114 of
the said decision to determine whether a particular proposition of law is
part of ratio decidendi of a case. It is also submitted that as per the
inversion test, if the findings recorded by the Supreme Court in respect of
ICC are reversed or removed from the judgment, it would not affect the
decision of the case which was in respect of the transfer of the respondent
no.2 and thus, it can be safely assumed that the observations made by the
Supreme Court in respect of ICC were only the obiter, and are not binding
on this Court.
10] The arguments at length have also been made regarding the finding
recorded by the Local Complaint Committee to submit that the findings
are perverse and are liable to be set aside even if the report filed by the
ICC is ignored.
11] Regarding availability of alternative remedy as provided under
Section 18 of the Act of 2013, is concerned, it is submitted that the
aforesaid objection has already been taken care of by this Court in its
order dated 17/10/2023, and the petitions have already been admitted,
rejecting the preliminary objection raised by respondent No.2 regarding
maintainability of the petition on the ground of appeal as provided under
Section 18 of the Act of 2013, and the said order passed by this Court has
also not been disturbed by the Supreme Court in SLP (C) No.7574-
7576/2024, vide its order dated 30/09/2024.
12] The prayer is vehemently opposed by Shri Prashant Bhushan,
learned counsel appearing for respondent No.2 and it is submitted that the
petition itself is not maintainable on account of availability of alternative
remedy of appeal under Section 18 of the Act of 2013. Counsel has also
drawn the attention of this Court to the order passed by the Supreme Court
on 30/09/2024 passed in SLP (C) No.7574-7576/2024 which was filed by
respondent No.2 against the order dated 17/10/2023, rejecting the plea of
availability of alternative remedy, and although the Supreme Court has
refused to entertain the aforesaid SLP, however, it has also been directed
to the High Court to decide the matter finally without being influenced by
the order passed by this Court on 17/10/2023. Thus, it is submitted that
the issue of jurisdiction of this Court has also been kept open by the
Supreme Court in the aforesaid order and the plea of dismissal of writ
petition on the ground of availability of alternative remedy can still be
considered by this Court.
13] Shri Bhushan has also drawn the attention of this Court to various
paragraphs of the order passed by the Supreme Court in Civil Appeal
No.1809/2020 dated 25/02/2020, to submit that in the aforesaid order
which related to transfer of the respondent No.2, the Supreme Court has
also taken note of the sexual harassment meted out to respondent No.2 in
the garb of her transfer, hence, it is submitted that the Supreme Court has
rightly reflected upon the constitution of ICC, and in such circumstances,
it cannot be said that the observations made by the Supreme Court
regarding ICC are obiter dictas and are not binding on this Court. It is also
submitted that no illegality has been committed by the Local Complaint
Committee in passing the impugned order and thus, no case for
interference is made out and the petitions are liable to be dismissed.
14] Heard learned counsel for the parties and perused the record.
15] From the record, it is found that so far as the order passed by the
Supreme Court in Civil Appeal No.1809/2020 is concerned, which was in
respect of transfer of the petitioner, the following paras are relevant to
decide if the observations made by the Supreme Court were ratio
decidendi or obiter dicta, the same read as under:-
"2 A senior officer of a public sector banking institution complains that her
reports about irregularities and corruption at her branch and her complaints
against an officer who sexually harassed her met with an order of transfer.
The case involves the intersection of service law with fundamental
constitutional precepts about the dignity of a woman at her workplace.
xxxxx
xxxxx
17 We must begin our analysis of the rival submissions by adverting to the
settled principle that transfer is an exigency of service. An employee
cannot have a choice of postings. Administrative circulars and guidelines
are indicators of the manner in which the transfer policy has to be
implemented. However, an administrative circular may not in itself confer
a vested right which can be enforceable by a writ of mandamus. Unless an
order of transfer is established to be malafide or contrary to a statutory
provision or has been issued by an authority not competent to order
transfer, the Court in exercise of judicial review would not be inclined to
interfere. These principles emerge from the judgments which have been
relied upon by the appellants in support of their submissions and to which
we have already made a reference above. There can be no dispute about
the position in law.
18 The real issue which the Court needs to enquire into in the present case
is as to whether the order of the High Court quashing the order of transfer
can be sustained, having regard to the above principles of law. The
material on record would indicate that commencing from 31 December
2016 and going up to 15 November 2017, the respondent, who was posted
as Chief Manager in her capacity as a Scale IV officer at Indore branch,
submitted as many as six communications drawing attention to the serious
irregularities which she had noticed in the maintenance of bank accounts
of and transactions by liquor contractors. The contents of the complaints
raised serious issues. The order of transfer was served on the respondent
within a month of the last of the above representations, on 14 December
2017. On 19 February 2018, the respondent levelled allegations
specifically of sexual harassment against the Zonal Manager. The bank
initially constituted an ICC. The respondent raised an objection to the
presence of some of the members of the Committee. The Committee as
constituted initially consisted of the following persons:
(i) Ms Havinder Sachdev, GM (Presiding Officer)
(ii) Ms Rashmita Kwatra, AGM (Member)
(iii) Ms Abha Sharma, CM (Member)
(iv) Mr Vimal Kumar Attrey, CM (Member & Convenor)
(v) Ms Shountal Singh, SRM (Member)
(vi) Ms Seema Gupta, Advocate (Independent Member)
19 The report of the ICC contains a reference to the objections which the
respondent raised to the members at serial numbers (ii), (iv) and (vi)
above. These objections were noted in the course of the report of the ICC
dated 26 February 2019. The respondent drew the attention of the
Presiding Officer of the ICC to the fact that Ms Rashmita Kwatra, AGM is
the spouse of a retired General Manager, who was part of the process of
the transfer of the respondent. As against Ms Seema Gupta, who was
nominated as an independent member, the respondent noted that she was a
panel advocate of the bank and was regularly contesting cases in court
involving the bank. The respondent also raised an objection in regard to
the presence of Mr Vimal Kumar Attrey as a member of the Committee.
The report of the Committee contains a reference to the fact that following
the objections which were raised by the respondent, the Committee was
reconstituted, as a result of which Ms Rashmita Kwatra and Mr Vimal
Kumar Attrey were substituted by two other officers of the bank. However,
Ms Seema Gupta, Advocate continue to be a member of the ICC.
20 The Act was enacted to provide protection against sexual harassment of
women at the workplace as well as for the prevention and redressal of
complaints of sexual harassment. Sexual harassment at the workplace is an
affront to the fundamental rights of a woman to equality under Articles 14
and 15 and her right to live with dignity under Article 21 of the
Constitution as well as her right to practice any profession or to carry on
any occupation, trade or business. Section 3 of the Act provides the
following:
3. Prevention of sexual harassment-
(1) No woman shall be subjected to sexual harassment at any workplace.
(2) The following circumstances, among other circumstances, if it occurs,
or is present in relation to or connected with any act or behavior of sexual
harassment may amount to sexual harassment:-
(i) implied or explicit promise of preferential treatment in her employment;
or
(ii) implied or explicit threat of detrimental treatment in her employment;
or
(iii) implied or explicit threat about her present or future employment or
status; or
(iv) interference with her work or creating an intimidating or offensive
or hostile work environment for her; or
(v) humiliating treatment likely to affect her health or safety."
(Emphasis added)
21 Section 4 of the Act requires the constitution of an ICC at all the
administrative units or offices of the work place. Sub-section (2) of Section
4 of the Act provides for the constitution of the ICC. Section 4(2) is
extracted below:
"4(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- overnmental 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."
22 Clause (c) of Section 4(2) indicates that one member of the ICC has to
be drawn from amongst a non-governmental organization 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.
23 The respondent did not participate in the proceedings before the ICC
since, in the meantime, she had moved the LCC in terms of the provisions
of Section 6 of the Act. Mr Sudhir Chandra, learned senior counsel urged
that the LCC under Section 6 can be set up in a situation where the ICC
has not been constituted or if the complaint is made against the employer
himself. It has been urged that in the present case there was no complaint
against the employer himself and hence the LCC would have no
jurisdiction under Section 6 of the Act. Be that as it may, we have a
situation in the present case where the appellants did not participate in the
proceedings before the LCC and the respondent did not participate in the
proceedings before the ICC. What, however, does emerge from the record
is that there was a fundamental defect in the constitution of the ICC which
was set up by the bank.
24 The material which has been placed on record indicates that the
respondent had written repeated communications to the authorities drawing
their attention to the serious irregularities in the course of the maintenance
of accounts of liquor contractors and in that context had levelled specific
allegations of corruption. The respondent was posted on 14 December
2017 to a branch, which even according to the bank, was not meant for the
posting of a Scale IV officer. The sanctity which the bank attaches to
posting officers of the appropriate scale to a branch commensurate with
their position is evident from the Board's Resolution to which we have
adverted earlier. Admittedly, the branch to which the respondent was
posted was not commensurate to her position as a Scale IV officer. There
can be no manner of doubt that the respondent has been victimized. Her
reports of irregularities in the Branch met with a reprisal. She was
transferred out and sent to a branch which was expected to be occupied by
a Scale I officer. This is symptomatic of a carrot and stick policy adopted
to suborn the dignity of a woman who is aggrieved by unfair treatment at
her workplace. The law cannot countenance this. The order of transfer was
an act of unfair treatment and is vitiated by malafides.
25 In view of the above analysis, we are of the view that the High Court
cannot be faulted in coming to the conclusion that the transfer of the
respondent, who was holding the office of Chief Manager in the Scale IV
in Indore branch to the branch at Sarsawa in the district of Jabalpur was
required to be interfered with. At the same time, a period of nearly four
years has since elapsed. Despite the order of stay, the respondent was not
assigned an office at Indore and had to suffer the indignity of being asked
to sit away from the place assigned to a Branch Manager. Considering the
period which has elapsed, it would be necessary for the Court to issue a
direction, which, while sub-serving the interest of the bank, is also
consistent with the need to preserve the dignity of a woman employee
who, we hold, has been unfairly treated.
26 We accordingly direct that Ms Durgesh Kuwar, the respondent officer,
shall be reposted at the Indore branch as a Scale IV officer for a period of
one year from today. Upon the expiry of the period of one year, if any
administrative exigency arises the competent authority of the bank would
be at liberty to take an appropriate decision in regard to her place of
posting independently in accordance with law keeping in view the relevant
rules and regulations of the bank, in the interest of fair treatment to the
officer. 27 While affirming the decision of the High Court, the appeal is
disposed of in terms of the above directions. The respondent would be
entitled to costs quantified at Rs 50,000 which shall be paid over within
one month."
(Emphasis supplied)
16] It is apparent from the aforesaid decision of the Supreme Court that
it has, has dealt with the issue of sexual harassment of the respondent no.2
in its entirety, including the constitution of the ICC, which has been held
to be fundamentally defective in para 23 of the judgment. In such
circumstances, and also taking note of para 2 of the aforesaid decision
wherein it has also been specifically observed by the Supreme Court that
the case involves the intersection of service law with fundamental
constitutional precepts about the dignity of a woman at her workplace, and
in such circumstances, it cannot be said that the observations made by the
Supreme Court in the aforesaid decision regarding the constitution of the
ICC would be obiter dicta and have to be ignored by this Court.
17] So far as the decision relied upon by Shri Amit Agrawal, learned
senior counsel for the petitioners in the case of Property Owners
Association (supra) is concerned, in which the inversion test has been
promulgated by the Supreme Court, the relevant paras of the same read as
under:-
"110. The counsel for the appellants contend that the observations in
Mafatlal on this point constitute obiter dicta and do not bind this bench of
coequal strength. On the other hand, the counsel for the respondents have
advanced the view that the issue arose directly in the case and the
observations are binding on this bench.
111. Not every observation in a judgement of this Court is binding as
precedent. Only the ratio decidendi or the propositions of law that were
necessary to decide on the issues between the parties are binding.109???
Observations by the judge, even determinative statements of law, which are
not part of her reasoning on a question or issue before the court, are termed
obiter dicta. Such observations do not bind the Court. More simply, a case is
only an authority for what it actually decides.
112. A Constitution Bench of this Court (speaking through Chief Justice
Khare) in Islamic Academy of Education v. State of Karnataka pithily
observed:
"2. [...] The ratio decidendi of a judgment has to be found out
only on reading the entire judgment. In fact, the ratio of the
judgment is what is set out in the judgment itself. The answer to
the question would necessarily have to be read in the context of
what is set out in the judgment and not in isolation. In case of
any doubt as regards any observations, reasons and principles,
the other part of the judgment has to be looked into. By reading
a line here and there from the judgment, one cannot find out the
entire ratio decidendi of the judgment. [...]"
113. In Secunderabad Club v. CIT,112 this Court, speaking through one of
us (Justice BV Nagarathna), had occasion to delineate how to cull out the
ratio decidendi of a judgement and identify the principles which have
precedential value. This Court observed:
"14. [...] According to the well-settled theory of precedents, every
decision contains three basic ingredients :
(i) findings of material facts, direct and inferential. An inferential
finding of fact is the inference which the judge draws from the direct
or perceptible facts ;
(ii) statements of the principles of law applicable to the legal
problems disclosed by the facts ; and
(iii) judgment based on the combined effect of (i) and (ii) above. For
the purposes of the parties themselves and their privies, ingredient
(iii) is the material element in the decision, for, it determines finally
their rights and liabilities in relation to the subject-matter of the
action. It is the judgment that estops the parties from reopening the
dispute. However, for the purpose of the doctrine of precedent,
ingredient (ii) is the vital element in the decision. This is the ratio
decidendi. It is not everything said by a judge when giving a
judgment that constitutes a precedent. The only thing in a judge's
decision binding a party is the principle upon which the case is
decided and for this reason it is important to analyse a decision and
isolate from it the ratio decidendi."
(emphasis supplied)
114. Further, a simple test that has been invoked by this Court to determine
whether a particular proposition of law is to be treated as the ratio decidendi
of a case is the "inversion test" formulated by Professor Eugene
Wambaugh.113??? The test mandates that to determine whether a particular
proposition of law is part of the ratio decidendi of the case, the proposition
is to be inversed. This means that either that proposition is hypothetically
removed from the judgement or it is assumed that the proposition was
decided in reverse. After such removal or reversal, if the decision of the
Court on that issue before it would remain the same then the observations
cannot be regarded as the ratio decidendi of the case."
(Emphasis supplied)
18] A perusal of the aforesaid decision would also reveal that although
the Supreme Court has referred to inversion test to separate the obiter
dicta from the ratio decidendi, however, these observations appear to have
been made only in respect of the test which the Supreme Court is required
to apply to find out about the ratio decidendi and obiter dicta of a
judgment. Nowhere in the aforesaid decision, or in other decision relied
upon by the learned counsel for the petitioners, there are any directions
issued by the Supreme Court that the obiter dicta of the Supreme Court is
not binding on the High Court. On the contrary, this Court can fruitfully
rely upon by the decision rendered by the Supreme Court in the case of
Oriental Insurance Company Ltd. Vs. Meena Variyal reported as 2007 5
SCC 428, in which it has also been observed by the Supreme Court that an
obiter dictum of the Supreme Court may be binding only on the High
Court in the absence of a direct pronouncement on the question elsewhere
by the Supreme Court. The relevant para 26 of the same reads as under:-
"23. Learned counsel for the respondent contended that there was no
obligation on the claimant to prove negligence on the part of the driver.
Learned counsel relied on Gujarat State Road Transport Corporation,
Ahmedabad vs. Ramanbhai Prabhatbhai and another (1987 (3) SCC 234) in
support. In that decision, this Court clarified that the observations in Minu
B. Mehta's case (supra) are in the nature of obiter dicta. But, this Court only
proceeded to notice that departures had been made from the law of strict
liability and the Fatal Accidents Act by introduction of Chapter VIIA of the
1939 Act and the introduction of Section 92A providing for compensation
and the expansion of the provision as to who could make a claim, noticing
that the application under Section 110A of the Act had to be made on behalf
of or for the benefit of all the legal representatives of the deceased. This
Court has not stated that on a claim based on negligence there is no
obligation to establish negligence. This Court was dealing with no-fault
liability and the departure made from the Fatal Accidents Act and the theory
of strict liability in the scheme of the Act of 1939 as amended. This Court
did not have the occasion to construe a provision like Section 163A of the
Act of 1988 providing for compensation without proof of negligence in
contradistinction to Section 166 of the Act. We may notice that Minu B.
Mehta's case was decided by three learned Judges and the Gujarat State
Road Transport Corporation case was decided only by two learned Judges.
An obiter dictum of this Court may be binding only on the High Courts in
the absence of a direct pronouncement on that question elsewhere by this
Court. But as far as this Court is concerned, though not binding, it does have
clear persuasive authority. On a careful understanding of the decision
in Gujarat State Road Transport Corporation (supra) we cannot understand it
as having held that in all claims under the Act proof of negligence as the
basis of a claim is jettisoned by the scheme of the Act. In the context
of Sections 166 and 163A of the Act of 1988, we are persuaded to think that
the so called obiter observations in Minu B. Mehta's case (supra) govern a
claim under Section 166 of the Act and they are inapplicable only when a
claim is made under Section 163A of the Act. Obviously, it is for the
claimant to choose under which provision he should approach the Tribunal
and if he chooses to approach the Tribunal under Section 166 of the Act, we
cannot see why the principle stated in 's case should not apply to him. We
are, therefore, not in a position tMinu B. Mehtao accept the argument of
learned counsel for the respondents that the observations in Minu B. Mehta's
case deserve to be ignored."
(Emphasis supplied)
19] In such circumstances, this Court is of the considered opinion that
the edifice of the petitioner's case, that the order passed by the Supreme
Court is not binding on this Court so far as it relates to the finding
recorded by the Supreme Court in respect of constitution of ICC, is based
on a false premise and cannot be accepted. Thus, it is held that the
observations made by the Supreme Court in the aforesaid judgement dated
25/02/2020, regarding ICC, are binding on this Court. Accordingly, it is
held that the ICC was not properly constituted.
20] Having held so, this Court is also of the considered opinion that in
the light of the aforesaid decision of the Supreme Court, if the respondent
No.2 had withdrawn her writ petition No.7962/2019 on 07/08/2019 which
had been filed against the report filed by the ICC, no illegality or error can
be said to have been committed by respondent No.2 in not pursuing the
aforesaid writ petition.
21] This Court is of the considered opinion that if the petitioners were
of the opinion that the observations made by the Supreme Court were not
binding on the High Court, then it was necessary for them to have this
clarification from the Supreme Court, but apparently, none of the
petitioners have approached the Supreme Court seeking any clarification
of the aforesaid order and now it is being argued before this Court that the
observations made by the Supreme Court are not binding on this Court,
which is appears to be an afterthought and cannot be accepted.
22] Now remains the impugned report dated 17/06/2019, passed by the
LCC, which has been prepared under Section 13 of the Act of 2013,
whereas Section 18 of the same provides for an appeal against such
recommendations in the following manner:-
"18. Appeal.--
(1) Any person aggrieved from the recommendations made under sub-
section (2) of section 13 or under clause (i) or clause (ii) of sub-section (3)
of section 13 or sub-section (1) or sub section (2) of section 14 or section 17
or non-implementation of such recommendations may prefer an appeal to
the court or tribunal in accordance with the provisions of the service rules
applicable to the said person or where no such service rules exist then,
without prejudice to provisions contained in any other law for the time
being in force, the person aggrieved may prefer an appeal in such manner as
may be prescribed.
(2) The appeal under sub-section (1) shall be preferred within a period of
ninety days of the recommendations."
23] So far as the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Rules, 2013 are concerned, Rule
11 of the same reads as under:-
"11. Appeal - Subject to the provisions of section 18, any person
aggrieved from the recommendations made under sub-section (2) of section
13 or under clauses (i) or clause (ii) of sub-section (3) of section 13 or sub-
section (1) or sub-section (2) of section 14 or section 17 or non-
implementation of such recommendation may prefer an appeal to the
appellate authority notified under clause (a) of section 2 of the Industrial
Employment (Standing Orders) Act, 1946 (20 of 1946)."
24] The parties have also brought on record a Notification dated
04/05/2016, issued by the Ministry of Labour and Employment, New
Delhi, which reads as under:-
"New Delhi, the 4th May, 2016
S.O. 1632(E).- In exercise of the powers conferred by clause (a) of section 2
of the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), and
in supersession of the notification of the Government of India in the
Ministry of Labour and Employment number S.O. 1062 dated the 15 th
March, 1990, the Central Government hereby appoints the following
officers to exercise the functions of appellate authority under the said Act in
respect of the industrial establishment under the control of Central
Government or a Railways administration or a major port, mine or oil-field
situated anywhere in India, namely:-
(1) Chief Labour Commissioner (Central):
(2) Additional Chief Labour Commissioner (Central);
(3) All Deputy Chief Labour Commissioner (Central).
[No.S-12011/3/2014-IR(PL)]
G.VENUGOPAL REDDY. Jt. Secy."
25] It is true that this court, vide its order dated 17/10/2023, had earlier
held that the petition is maintainable but when the said order was assailed
by the respondent no.2 before the Supreme Court in Special Leave to
Appeal (c) No.7575-7576/2024, it was decided on 30/09/2024 and
following observations were made:-
"1.Heard the learned counsel appearing for the respective parties.
2. We are not inclined to interfere with the impugned order passed by
the High Court in view of the fact that the said order is interim in
nature. However, it is brought to our notice that the Writ Petitions are
still pending before the High Court. In this view of the matter, we
request the High Court to dispose of the Writ Petitions as expeditiously
as possible, preferably within four months from today. We would also
clarify that the High Court would dispose of the Writ Petitions without
being influenced by the observations made in the order impugned
before us.
3. The Special Leave Petitions are, accordingly, disposed of."
(Emphasis supplied)
26] Thus, it is apparent that this court has been directed to decide the
matter without being influenced by the said order dated 30/09/2024. In
such circumstances, in the light of the aforesaid Notification and also the
regulations of the petitioner Punjab & Sind Bank, this Court is of the
considered opinion that the remedy of an appeal is very much available to
the petitioners and all the disputed question of facts can certainly be raised
before the appellate authority only.
27] In such facts and circumstances of the case, this Court does not find
it to be a fit case to interfere while exercising its extraordinary jurisdiction
under Article 226 of the Constitution of India.
28] Accordingly, the petitions being devoid of merits are hereby
dismissed. However, with liberty reserved to the petitioners to take
recourse of remedy of appeal before the appellate authority. It is also
directed that if the petitioners prefer an appeal within one month from the
date of receipt of certified copy of this order, the same shall be decided by
the appellate authority, in accordance with law, after giving due
opportunity of hearing to all the parties concerned, and without raising
any objection as to the limitation in filing the appeal as apparently, the
time spent by the petitioners in prosecuting this petition has to be
excluded from the period of limitation.
29] Consequently, the order/report dated 17/06/2019 passed by the LCC
against the Bank also can be challenged in the appeal as provided
aforesaid.
30] In view of the same, writ petitions stand dismissed, with the liberty
reserved as aforesaid.
Signed copy of this order be kept in WP No.20489/2019 and a copy
whereof be placed in connected petitions.
Sd/-
(SUBODH ABHYANKAR)
JUDGE
krjoshi
