Telangana High Court

Mr Dondaptti Sateesh Reddy vs State Of Telangana on 27 March, 2024

Author: Nagesh Bheemapaka

Bench: Nagesh Bheemapaka

       HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA

            WRIT PETITION No. 19730 OF 2023

ORDER:

Petitioner is running the software company in the

name and style of 'VIP Screen LLP Wave Broadcasting

Solutions', which provides graphic designs to customers. It is

stated, on 16.12.2021, he hired the 3rd respondent as a graphic

designer with a monthly salary of Rs. 22,000/-. She performed

satisfactorily for six months, but later when faced difficulties in

work and unable to download t he graphics sent by one of the

customers at Chennai, petitioner advised her to focus on work,

warning that failure to do so could result in termination as per

the agreement terms.

According to petitioner, to gain efficiency, in

October, 2022, he asked the 3rd respondent to go to Chennai for

training, but she refused due to health reasons. In the first

week of November 2022, Chennai customer again requested

training for respondent No. 3. Considering her language barrier,

the petitioner planned to go to Chennai for other work and

asked the 2nd respondent No. 2 to accompany. The 3rd

respondent booked air tickets for both herself and petitioner for

15th of November up journey and 17th return journey and also

booked two rooms at Park Hotel, Chennai.

It is stated, petitioner and the 3rd respondent

arrived at Hotel on 15.11.2022 around 5:00 PM and checked-

into their rooms. Around 5:10 PM, petitioner called the 3rd

respondent to go out for evening snacks, but she declined, citing

the need to rest. Petitioner left alone and returned around 7:00

PM, attempting to contact respondent No. 3 several times with

no response. After complaining to hotel management, they

found the 3rd respondent's room empty, without any luggage.

Petitioner therefore, filed a complaint with Station House

Officer, Annasela Police Station. Surprisingly, the 3rd

respondent sent an e mail to the HR Manager and petitioner on

17.11.2022 at 2:29 PM, stating she couldn't attend work for the

next two weeks due to personal reasons. On 01.12.2022, she

requested leave until Monday, 05.12.2022, and has not

attended work since 17.11.2022.

While so, petitioner received a phone call from

Jubilee Hills Police Station on 13.12.2022 at about 11:00 AM,

informing them of a complaint filed by the 3rd respondent

alleging misbehaviour with her at Chennai, which led to

registration of FIR No. 741 of 2022 on 13.12.2022 under

Sections 354, 354-A, and 509 IPC. Police issued notice under

Section 41-A Cr.P.C. to petitioner. Additionally, the 2nd

respondent sent a mail to petitioner on 16.02.2023, summoning

them to attend LC committee meeting on 22.2.2023 at 12:00

Noon at the office of the District Welfare Officer, Abdis. The case

was numbered as 2 of 2022. Petitioner appeared through

counsel on 22.2.2023 and submitted an explanation, asserting

their innocence and addressing the false complaint.

Subsequently, another notice was sent via mail dated

03.03.2023, directing petitioner to attend meetings on

06.03.2023 and 10.03.2023. the 2nd respondent instructed

petitioner to settle the dispute with the 3rd respondent by paying

an amount of Rs. 20 lakhs. Aggrieved by the same, petitioner

filed Writ Petition No. 6598 of 2023 and the complainant also

filed Writ Petition No. 6031 of 2023 for non- concluding the

enquiry as per the Act. This Court disposed of both the Writ

Petitions on 10.03.2023 with a common order, the operative

portion of the order is as below;-

" In view of the submissions made by respective parties, both the writ petitions are disposed of directing respondent No.2- Local Committee to issue notice to the petitioner as well as respondent No.3 in W.P.No.6598 of 2023 for conducting enquiry as required under Section 10 of POSH Act, 2013 by giving date of enquiry on 25.03.2023. The petitioner and respondent No.3 in W.P.No.6598 of 2023 are entitled to raise all the objections as available under law. Respondent No.2 is directed to consider the objections raised by respective parties and pass appropriate orders, in accordance with law, within a period of ten (10) weeks".

In response to the allegations, petitioner filed

objections on 25.03.2023, narrated in the affidavit, in detail,

and also appeared before the 2nd respondent, but the 3rd

respondent was absent. Subsequently, the 2nd respondent called

petitioner and instructed them to attend Zoom meeting at 6.00

PM., on 12.04.2023, where his statement was recorded but no

opportunity to present evidence was given. Astonishingly, the

2nd respondent communicated the report dated 06.06.2023 to

petitioner only on 24.06.2023 directing them to a) provide full

salary to the 3rd respondent from 22.11.2022 to 06.06.2023, b)

issue an experience certificate, c) pay Rs. 1,00,000-00 as

compensation for mental agony, and d) pay a fine of Rs. 50,000-

00 to the LC committee for not forming an internal committee.

Petitioner challenges this report dated 06.06.2023 in Case No.

2/2022 on various grounds:

a) the 2nd respondent failed to provide opportunity

for cross-examination of witnesses LW1 to LW6, with their

statements recorded on 01.04.2023, 06.04.2023, and

29.04.2023 respectively, without notice to the petitioner,

violating principles of natural justice.

b) failure of the 2nd respondent to adhere to legal

precedents, including the judgment in Aureliano Fernandes vs

State of Goa (Civil Appeal No. 2482/2014) dated 12.5.2023,

exemplifies an improper exercise of discretion, contrary to

natural justice.

c) non-compliance with legal precedent set by the

High Court of New Delhi in Writ Petition No. 8226 of 2007 dated

29.5.2009, wherein it emphasized the necessity of providing

delinquent with an opportunity for cross-examination and to

produce witnesses in defense, renders the inquiry invalid.

d) neglect of legal precedent established by the High

Court of New Delhi in Writ Petition No. 1665 of 2014 dated

30.09.2014, where the opportunity for cross-examination was

granted to the delinquent, illustrates a failure to uphold basic

principles of natural justice.

e) failure to adhere to the procedure prescribed

under Section 11(3) of the Act, granting the 2nd respondent the

powers akin to those of the Code of Civil Procedure (CPC),

indicates a procedural lapse.

f) disregard of the office memorandum issued by the

Government of India vide F No. 11013/2/2013-Estt (A-III) dated

16.7.2015, which mandates the charged officer's right to cross-

examine all witnesses, signifies a denial of reasonable

opportunity to the charged officer.

g) recording the petitioner's statement on 25.3.2023

before those of LW1 (recorded on 1.4.2023) indicates a

procedural irregularity.

h) failure of the 2nd respondent to consider the

objections filed by the petitioner, as per the order of the Hon'ble

Court dated 10.03.2023 in Writ Petition No. 6598 of 2023,

constitutes a violation of the court's directive.

i) recording the statements of LWs.1 to 6 and RW1

and reaching findings without proper appreciation of their

statements, as observed by the 2nd respondent, reflects arbitrary

decision-making.

2. The 2nd respondent District Education Officer /

Local Committee Chair Person filed the counter-affidavit stating

that the 3rd respondent, who worked as graphic designer at

petitioner company, made a complaint on 22.11.2022 under

Section 9 of the POSH Act 2013, alleging sexual harassment by

her employer. She stated that she was asked by petitioner to

attend a training session in Chennai, for which he booked flight

tickets and hotel rooms at Park Chennai. Upon arrival, she

called the Petitioner from outside his room at 5:22 pm, as

instructed, but upon entering, she was allegedly molested by

petitioner. Following a complaint alleging sexual harassment,

this respondent took action by issuing notices via e mail on

29.11.2022, 30.01.2023, 04.02.2023 requesting petitioner's

attendance before the Local Committee. Despite repeated

notices, petitioner failed to appear before the Committee. On

16.02.2023, after gathering relevant contact details, their office

issued another notice for a meeting on 22.02.2023, which

petitioner also did not attend. Subsequently, notices were sent

via speed post and e mail on 04.03.2023 for a meeting on

06.03.2023. Petitioner responded, citing ill-health, and meeting

was re-scheduled for 10.03.2023, however, petitioner did not

attend and speed post was returned undelivered.

It is stated, the Local Committee repeatedly

contacted petitioner urging attendance at Hyderabad meeting to

address the 3rd respondent's complaint, however, petitioner

intentionally avoided these meetings, surpassing the 90-day

inquiry completion limit outlined in the POSH Act, meanwhile,

the 3rd respondent approached the committee and thereafter,

filed Writ Petition No. 6031 of 2023, challenging the delay in

completing the inquiry. Petitioner also filed Writ Petition No.

6598 of 2023, contesting non-allowance of counsel during the

proceedings. Both petitions were heard together and disposed of

by a common order on 10.03.2023. The Court directed the Local

Committee to issue notices to both parties for conducting an

inquiry. Petitioner was granted liberty to raise objections and

Local Committee was instructed to consider these objections

and pass appropriate orders within 10 weeks. In compliance

with Court's order, the 2nd respondent issued notices to

petitioner and conducted a detailed inquiry, recording

statements from parties and witnesses. Despite several notices,

petitioner initially failed to respond but eventually appeared

before the Committee. He provided a written reply and made

statements, requesting the committee to proceed with the

inquiry based on available evidence and witness testimonies.

This respondent asserts that Writ Petition

challenging the Report dated 06.06.2023 lacks merit, as

petitioner's claim regarding absence of cross-examination

opportunities is baseless. The High Court had previously

clarified that all objections could be raised before the

Committee, yet petitioner did not express intent to cross-

examine witnesses. The Respondent followed statutory

procedures, ensuring fair opportunities for the petitioner and

recording their statement before filing the report. Therefore,

claims of violating natural justice principles are unfounded.

Petitioner failed to file a representation against the findings as

required by Section 11 proviso (2) of the POSH Act, rendering

Writ Petition non-maintainable.

3. The 3rd respondent filed the counter-affidavit

denying all the allegations made in the accompanying Petition,

stating them as false and baseless. It is stated, she had been

working diligently since her appointment and she used to report

directly to petitioner. Since the date of joining, petitioner used to

make the 3rd respondent feel uncomfortable and used to make

several inappropriate remarks at the workplace. Petitioner, on

multiple occasions, insisted the 3rd respondent to accompany

him Chennai to undergo a training programme. In view of

petitioner's behaviour, the 3rd respondent managed to postpone

this so-called training programme on the ground of medical

treatment, however, on 12.11.2022, petitioner insisted that she

should accompany him to Chennai from 15.11.2022 to undergo

training and even threatened to fire her if she refused to

accompany him to Chennai. Under this grave threat of losing

her source of livelihood, the 3rd respondent was forced to agree

to go for training programme to Chennai on 15.11.2022.

In a distressing incident on 15.11.2022, the 3rd

respondent faced sexual harassment by Petitioner at Park Hotel,

Chennai. According to her, petitioner orchestrated the trip with

the intent of coercing the 3rd respondent to provide sexual

favors. When she refused, she was subjected to molestation and

harassment. On 22.11.2022, the 3rd respondent, with courage,

lodged a complaint with the 2nd respondent Local Committee

formed under Section 6 of the POSH Act. Seeking relief during

the inquiry, she requested the LC to grant her leave until its

completion. Additionally, she sought payment of salaries,

continuation of salary slips, termination of employment,

damages for mental trauma and a written apology from

petitioner. She also appealed for permission to leave the

company.

It is stated, the 3rd respondent, in compliance with

the statutory provisions outlined in Sections 11(4) and 13 of the

POSH Act, filed Writ Petition No. 6031 of 2023, highlighting the

failure of the 2nd respondent Local Committee to complete

inquiry into sexual harassment complaint within the mandated

90-day period. Upon hearing arguments from both the parties,

this Court disposed of the Writ Petition directing the 2nd

respondent to issue notices to both the petitioner and the 3rd

respondent for conducting an inquiry and passing appropriate

orders within ten weeks. The Court emphasized the parties'

entitlement to raise objections as per the law.

Subsequently, the 2nd respondent initiated a

detailed inquiry, recording statements from all relevant parties

and witnesses. Despite several notices issued by the Committee,

petitioner failed to respond promptly and only appeared after

considerable efforts from the Committee. Petitioner submitted a

written reply and provided statements before the committee,

urging them to proceed with the inquiry based on available

evidence.

Petitioner lodged a Writ Petition contesting the

report dated 06.06.2023, alleging it to be baseless and

untenable on the ground that the 2nd respondent failed to

provide the opportunity for cross-examination of witnesses, but

this contention was dismissed as petitioner did not

communicate an intention to cross-examine witnesses during

the proceedings. The 3rd respondent was informed by the

Committee that petitioner declared, in writing, that he had no

witnesses and did not intend to examine any. Despite this,

petitioner insisted that the proceedings continue with witness

hearings.

This respondent argues that allowing petitioner to

cross-examine witnesses directly would be prejudicial, given the

power dynamics between them and the witnesses, who are

either current or former employees of petitioner. This

respondent contends that such direct cross-examination could

intimidate the witnesses and compromise the integrity of the

inquiry process. Additionally, it is highlighted that the rules

prohibit parties from being represented by legal practitioners

during the inquiry. The only permissible method for petitioner

to cross-examine witnesses is through a questionnaire

submitted to the Committee, which would then be circulated to

the witnesses. However, petitioner himself indicated to the

Committee that he did not intend to examine any witnesses,

thereby waiving his right to cross-examination. Furthermore,

this respondent stresses the importance of maintaining

confidentiality of witnesses to ensure a safe environment for

reporting instances of sexual harassment; revealing the

identities of witnesses, who are predominantly young women

and victims of harassment, could jeopardize their safety and

deter others from coming forward with complaints. Therefore,

the Respondent asserts that maintaining witness confidentiality

is essential for the integrity of the inquiry process.

4. Heard Sri Gudi Madhusudhan Reddy, learned

counsel for petitioner, learned Government Pleader for Women

Development and Child Welfare, Sri Mohammed Omer Farooq,

learned counsel for the 3rd respondent and Sri Umar Farookh

Shaik, learned Standing Counsel on behalf of the 2nd

respondent. Perused the record.

5. A perusal of the report impugned shows lack of

bona fides on the part of petitioner. It recorded that Local

Committee, Hyderabad made several calls and repeatedly

directed petitioner to attend the meeting, but he intentionally

avoided to attend and exceeded the time limit of 90 days in

which inquiry has to be completed as per POSH Act. Later, in

Zoom calls, he narrated the happenings; on 16.12.2022, police

of Jubilee Hills called him and surrounded his house for which

he felt hurt as his image got damaged in front of neighbors and

his wife. He did not agree for conciliation but promised to give

the 3rd respondent 15 days salary in November 2022 and

experience certificate and he also said that the 3rd respondent

has no evidence against him, insisted as he did not have any

witnesses with him, he would obey Local Committee decision

after listening to CW1 witnesses and requested to continue the

enquiry. The other witnesses examined also supported the

version of the 3rd respondent, hence, the Local Committee came

to the conclusion that petitioner is habituated to talk to girls to

satisfy his sexual anxiety and plans to molest them, thus found

him guilty and made the recommendations as mentioned in the

impugned order. The Local Committee is the fact-finding

authority, which has recorded the statements of victim,

petitioner as well as other employees who worked with petitioner

company. This Court is therefore, not inclined to interdict with

the decision arrived at by them.

6. As far as the contention of petitioner that he was

not given opportunity to cross-examine the witnesses, the 2nd

respondent submits that petitioner did not choose to

communicate his intention to cross-examine any of the

witnesses examined by the Committee and the 2nd respondent

made its report after following the statutory procedure, giving

fair opportunity to petitioner. Further, it is stated that after

communication of enquiry report dated 06.06.2023 petitioner

has to file a representation against the findings before the

Committee as contemplated under Section 11(2) of the POSH

Act, but he failed to utilise the said remedy. The 3rd respondent

also stated that she was informed by the 2nd respondent that

petitioner gave a written declaration that there were no

witnesses from his side and that he does not intend to examine

any of the witnesses; a copy of declaration was not given to

petitioner and is available in the records of the 2nd respondent.

7. In this regard, learned counsel for petitioner draws

attention of this Court to the provisions of the Sexual

Harassment of Women at Workplace (Prevention, Prohibition

and Redressal) Act, 2013, particularly Section 11(3) which

prescribes that for the purpose of making an enquiry under

sub-section (1), the Internal Committee or the Local Committee,

as the case may be, shall have the same powers as are vested in

a civil Court the Code of Civil Procedure, 1908 when trying a

suit in respect of the matters; namely a) summoning and

enforcing the attendance of any person and examining him on

oath, b) requiring the discovery and production of documents;

and c) any other mater which may be prescribed; d) the inquiry

under sub-section (1) shall be completed within a period of

ninety days. The proceedings of Government of India updated

on 04.11.2022 regarding examination of witnesses, is extracted

as under:

Examination of Witnesses

Summons would, thereafter, be sent to the witnesses listed in the Charge sheet. The Presenting Officer may choose to produce them in any order he finds appropriate. These witnesses would be examined in the inquiry in the following manner. The examination in chief would be done by the Presenting Officer where the Presenting Officer may ask questions of the witness to ascertain the facts. The witness would, thereafter, be cross-examined by the Defense. After the cross-examination, the Presenting Officer would be given an opportunity to re-examine the witness. In the examination in chief, leading questions are not allowed. These are however allowed in the cross examination.

The procedure of Inquiry requires opportunity to the Charged Officer to cross- examine all the witnesses that appear on behalf of the Prosecution, Failure to do so may be construed as a denial of reasonable opportunity to the charged officer, resulting in vitiation of the Inquiry. If the complainant appears as a witness, she would also be examined and cross-examined. The Inquiry Officer may however disallow any questions which are offensive, indecent or annoying to the witnesses, including the complainant.

If Inquiring Authority wishes to ascertain some facts for clarity, he may pose questions to the witnesses. This should however, be done in such a manner as to not show any bias for or against the Charged Officer. This has to be done in the presence of the Presenting Officer and the Charged Officer/Defence Assistant. No Inquiry should be conducted behind the back of the charged officer. The witnesses will be examined one by one, and the other witness who are either yet to be examined, or have been examined are not allowed to be present during the examination of a witness.

8. Learned counsel also relied on the judgments of the

High Court of Delhi in Prof. Bidyug Chakraborty v. Delhi

University (W.P.(C) No. 8226 of 2007) and Avinash Mishra v.

Union of India (W.P(C).No. 821 of 2014), wherein it has been

held that it is obligatory on the part of the Apex Committee,

which inquired into the matter, to at least follow the

fundamental norms for conducting inquiry. If we do not read

such a requirement to be implicit in Ordinance XV-D, it may not

be possible to sustain the validity of inquiry procedure

prescribed therein. The enquiry conducted without giving an

opportunity to the delinquent to cross-examine the witnesses

and principles of natural justice and a procedure which does