Delhi High Court
X vs Akademi And Ors on 28 August, 2025
Author: Sanjeev Narula
Bench: Sanjeev Narula
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 28th August, 2025
+ W.P.(C) 1103/2020, CM APPL. 11695/2023, CM APPL.
21955/2023, CM APPL. 36663/2023, CM APPL. 44573/2023, CM
APPL. 47022/2023
X .....Petitioner
Through: Mr. Ritin Rai, Senior Advocate with
Ms. Shreya Munoth, Ms. Sitamsini
Cherukumalli and Mr. Khush Aalam
Singh, Advocates.
versus
AKADEMI AND ORS. .....Respondents
Through: Ms. Geeta Luthra, Senior Advocate
with Mr. Abhishek Aggarwal, Ms.
Prashansika Thakur and Ms. Ishita
Agarwal Advocates for R-1.
Mr. Ashish K. Dixit, Mr. Shivam
Tiwari, Ms. Urmila Sharma and Ms.
Deepika Kalra, Advocates for R-4.
Mr. Tushar Sannu and Mr. Pravin Kr.
Bansal, Advocates for GNCTD.
+ W.P.(C) 2546/2021
AKADEMI THROUGH ITS AUTHORISED REPRESENTATIVE
.....Petitioner
Through: Ms. Geeta Luthra, Senior Advocate
with Mr. Abhishek Aggarwal, Ms.
Prashansika Thakur and Ms. Spriha
Jha, Advocates.
versus
GNCTD AND ORS .....Respondents
Through: Ms. Shreya Munoth, Ms. Sitamsini
Cherukumalli and Mr. Khush Aalam
Singh, Advocates for R-3.
Mr. Ashish Dixit, Mr. Shivam Tiwari,
Signature Not Verified
Digitally Signed W.P.(C) 1103/2020 & W.P.(C) 2546/2021 Page 1 of 44
By:NITIN KAIN
Signing Date:29.08.2025
17:24:25
Mr. Umar Hashmi, Ms. Urmila
Sharma and Ms. Venni Kakkar,
Advocates for R-4.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
JUDGMENT
SANJEEV NARULA, J.:
1. This case traces the ordeal of a woman employed on probation at the
Sahitya Akademi, India’s national academy of letters. She alleges that she
was subjected to sexual harassment at the hands of its Secretary. Taking the
view that the Akademi’s Internal Complaints Committee1 lacked
jurisdiction, she approached the Local Complaints Committee.2 Soon
thereafter, while her grievance was pending consideration, her services were
abruptly terminated. The Akademi, for its part, contends that her probation
ended upon an assessment of her suitability and that the discharge was in
accordance with the terms of contract of employment. The present
proceedings, therefore, turn on two interlinked questions: whether the LCC
had exclusive jurisdiction to examine the complaint, and whether the
Petitioner’s discharge can withstand judicial scrutiny in light of her status as
a probationer. More than a service dispute, the case speaks to wider
concerns of workplace dignity for women and the responsibility of
institutions in addressing allegations of sexual harassment.
2. For ease of reference, the Complainant will hereinafter be referred to
as the “Petitioner”, while the individual against whom the allegations have1
“ICC”
2
“LCC”
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By:NITIN KAIN
Signing Date:29.08.2025
17:24:25
been levelled will be referred to as the “Secretary”. Sahitya Akademi shall
be referred to as the “Akademi”.
FACTUAL AND PROCEDURAL BACKGROUND
3. The Petitioner, a native of Assam, was appointed on probation as
Editor (English) in the Akademi on 15th February, 2018. She states that,
from the outset, her professional journey was marred by persistent sexual
harassment at the hands of the Secretary. She alleges that the harassment
took multiple forms, including unwelcome physical and sexual contact,
sexually explicit remarks, and acts amounting to sexual assault. She further
states that these advances were accompanied by threats of adverse
consequences if she resisted demands for sexual favours. In addition, she
contends that she was singled out and harassed on account of her ethnicity,
being an Assamese woman.
4. The Petitioner lodged a complaint before the LCC constituted under
the Sexual Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013.3 The LCC, by its orders dated 16th December,
2019 and 16th January, 2020, found a prima facie case to proceed, holding
that the post of ‘Secretary’ fell within the definition of “employer” under
Section 2(g) of the POSH Act. Consequently, it recommended interim relief
to the Petitioner in the form of three months’ paid leave.
5. The Petitioner thereafter approached this Court by way of W.P.(C)
No. 1103/2020, alleging non-compliance with the LCC’s directions and
seeking enforcement of its recommendations. By interim orders dated 29 th
January, 2020 and 05th March, 2021, this Court stayed the inquiry pending
before the LCC. At the same time, on multiple occasions, including on 13 th
3
“the POSH Act”
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By:NITIN KAIN
Signing Date:29.08.2025
17:24:25
February, 2020; 26th February, 2020 and 16th March, 2020, the Court
directed the Akademi to pay the Petitioner her salary and deemed her status
to be on paid leave. These interim directions were intended to ensure that,
pending adjudication, the Petitioner was not left without subsistence or
financial protection.
6. During the pendency of the writ proceedings, the Akademi issued an
Office Memorandum dated 14th February, 20204 terminating the Petitioner’s
services and, shortly thereafter, discontinued the payment of her salary with
effect from 08th May, 2020.
7. The Petitioner moved an application (C.M. No. 9969/2021) seeking
leave to amend the writ petition so as to also impugn the Discharge OM. By
order dated 12th May, 2021, this request was allowed and as a result, her
present challenge encompasses the termination of her services and a range of
consequential reliefs, which reads as follows:
“a. Issue a writ of mandamus and/or any other appropriate writ, order
or direction to quash and set aside the impugned office memorandum dated
14.02.2020 issued by Sahitya Akademi to terminate the service of the
Petitioner,
b. Issue an appropriate writ, order, or direction directing Respondent
No. 1 to provide to the Petitioner and place on record (i) information
pertaining to the officer/authority who reviewed and assessed the
Petitioner’s performance for the period February 15 December 31, 2018;
(ii) the Petitioner’s appraisal report for the aforesaid period, as reviewed by
the relevant officer/authority; (iii) information pertaining to the
officer/authority who issued the appraisal form to the Petitioner in January
2020; (iv) information relating to the constitution and composition of the
“Review Committee”; (v) minutes of meetings and proceedings of the
“Review Committee” purportedly constituted to review the Petitioner’s
performance; and (vi) file notings/observations of the President prior to
issuing the impugned office memorandum dated 14.2.2020;
c. Issue a writ of mandamus and/or any other appropriate writ, order
or direction, directing the Respondent No. 1 to reinstate the Petitioner to
her former position, with continuity of service, full back wages, and other
4
“the Discharge OM”
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By:NITIN KAIN
Signing Date:29.08.2025
17:24:25
consequential service benefits;
d. Issue a writ of mandamus and/or any other appropriate writ, order
or direction to the Respondent No. I and all other office bearers of Sahitya
Akademi to refrain from taking any adverse decision with respect to the
Petitioner’s employment status during the pendency of this case before this
Hon’ble Court;
f. Issue an appropriate writ, order or direction, directing Respondent No. 1
to comply with Section 19 of the POSH Act, particularly with respect to
displaying the composition of the ICC and the policy to prevent sexual
harassment at a prominent place, and to organize sensitization workshops
on the POSH Act at regular intervals at Sahitya Akademi for all employees;
g. Issue an appropriate writ, order or direction, directing Respondent
No. 1 to pay compensation at a minimum of Rs 5 lakhs for the mental
trauma, pain, suffering and emotional distress caused to the Petitioner;
h. Issue an appropriate writ, order or direction, directing the
Respondent No. 3 to impose a penalty of Rs 50,000/- on the Respondent No.
1 for failing to comply with the directions dated December 16, 2019 and
January 16, 2020 issued by Respondent No. 2, as well as for failing to
comply with the duties mentioned in Section 19 of the POSH Act;
i. Pass an ad-interim order in terms of the prayers in clauses (a) to (e)
above;
j. Pass such other or further order(s)/direction(s), which this Hon’ble Court
may deem fit and proper in the facts and circumstances of the present case
to meet the ends of justice.”
8. In the meantime, the Akademi filed a separate writ petition, W.P.(C)
No. 2546/2021, challenging the jurisdiction of the LCC. In that proceeding,
the LCC was arrayed as Respondent No.2 and the Petitioner as Respondent
No.3. Through this petition, the Akademi sought to question the competence
of the LCC to entertain and enquire into the allegations levelled by the
Petitioner, and prayed for the following reliefs:
“a) issue a writ, order or direction in the nature of certiorari thereby
quashing the proceedings initiated before respondent no. 2;
b) issue a writ, order or direction in the nature of certiorari setting
aside and quashing the order dated 16.01.2020 passed by the respondent
no. 2 bearing no. F.14(62)/DC/ND/CO-ORD/2019/476.
c) award exemplary costs in favour of the petitioner and against the
respondents”
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By:NITIN KAIN
Signing Date:29.08.2025
17:24:25
9. By a consolidated judgement dated 25th October, 2021, this Court
determined the jurisdictional issue, holding that the Secretary fell within the
definition of “employer” under Section 2(g) of the POSH Act, and therefore
only the LCC was competent to enquire into the allegations levelled against
him. The ICC, constituted within the Akademi, was found lacking such
authority. In the same judgment, this Court also quashed the Discharge OM,
whereby the Petitioner’s services had been terminated, finding it
unsustainable in law. As a result, W.P.(C) 1103/2020 filed by the Petitioner
stood allowed, while W.P.(C) 2546/2021 instituted by the Akademi was
dismissed.
10. The aforesaid judgment was carried in appeal by the Akademi and its
Secretary through LPA 433/2021 and LPA 441/2022, respectively. On 12 th
November, 2021, a Division Bench of this Court stayed the operation of the
impugned judgment. Aggrieved, the Petitioner approached the Supreme
Court, wherein by order dated 12th April, 2022 passed in SLP (C) No.
20089/2021, it was observed that the stay effectively deprived the Petitioner
of the reliefs granted, including reinstatement and emoluments. Accordingly,
the Supreme Court modified the stay, directing that the Petitioner be paid
emoluments from 01st April, 2022 onwards, until final disposal of the appeal
before the Division Bench.
11. Subsequently, the Division Bench, noting that the Secretary had not
been heard at the stage of deciding the writ, with the consent of parties, by
order dated 23rd January, 2023 in LPA 441/2022, set aside the judgment and
remanded the matter for fresh consideration. It was however, directed that
the interim direction issued by the Supreme Court would continue to operate
during the remanded proceedings. In view of this order, LPA 433/2021 was
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By:NITIN KAIN
Signing Date:29.08.2025
17:24:25
rendered infructuous and was accordingly disposed of without further
directions.
12. By order dated 30th January, 2023, this Court directed the
impleadment of the Secretary as Respondent No. 4.
13. After remand, extensive arguments were heard in W.P.(C) No.
1103/2020, and the matter was reserved for judgment on 07th July, 2025.
14. Subsequently, through CM Appl. 43876/2025 [in W.P.(C) No.
2546/2021], it was pointed out that owing to an inadvertent omission,
W.P.(C) No. 2546/2021 had not been listed along with W.P.(C) No.
1103/2020 despite the remand directed by the Division Bench being
applicable to both the Petitioners, when the matter was taken up on 24th July,
2025, counsel for both sides fairly acknowledged that the arguments already
advanced in W.P.(C) No. 1103/2020 sufficiently encompassed the issues
and reliefs in W.P.(C) No. 2546/2021, and that no further hearing was
required. In view of this common stand of parties, orders in W.P.(C) No.
2546/2021 were also reserved, to be pronounced along with W.P.(C) No.
1103/2020.
QUESTIONS FOR DETERMINATION
15. What began as a complaint of sexual harassment and alleged
retaliatory termination has traversed multiple rounds of litigation: first
before the LCC, then in writ proceedings before this Court, followed by
appeals before the Division Bench, intervention by the Supreme Court, and
ultimately a remand for fresh adjudication.
16. In light of the controversy arising in these two writ petitions, the
following questions arise for determination:
(i) Whether the LCC was vested with jurisdiction to enquire into the
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By:NITIN KAIN
Signing Date:29.08.2025
17:24:25
allegations of sexual harassment levelled by the Petitioner against the
Secretary of the Akademi?
(ii) Whether the Discharge OM terminating the services of the Petitioner,
is liable to be quashed?
(iii) Depending on the findings on the above, what reliefs, if any, ought to
be granted to the Petitioner?
SUBMISSIONS ADVANCED
17. Mr. Ritin Rai, Senior Advocate, advanced the following submissions
on behalf of the Petitioner/Complainant:
The LCC alone is vested with the jurisdiction to inquire into the
Petitioner’s complaint of Sexual Harassment
18. As per Section 6 and 9 of the POSH Act, the LCC is vested with
jurisdiction to inquire into sexual harassment firstly, when the allegations
are levelled against the “employer” within the meaning of Section 2(g), and
secondly, where no statutorily compliant ICC is in place at the workplace.
Further, the ICC cannot inquire into complaints of sexual harassment and
cannot exercise its jurisdiction unless a complaint is made to it in writing.
The Secretary is the “employer” in terms of Section 2(g) of the POSH Act
19. The POSH Act defines the term “employer” and “workplace” with
width to include the head of every branch or unit of every organization
within its ambit. The head office of the Akademi, in Delhi, constitutes a
standalone workplace under Section 2(o)(i). In terms of Section 2(g)(i) and
(iii), the head of every branch, as well as the person discharging contractual
obligations, are included with the term “employer”. The expansive
provisions of the Act, particularly in the context of who is an “employer”
within the meaning of the Act, have to be interpreted purposively to ensure a
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By:NITIN KAIN
Signing Date:29.08.2025
17:24:25
fair inquiry, as the Act is an ameliorative social welfare legislation.
20. Clause 8(I) of the Akademi’s Constitution designates the Secretary as
its Principal Executive Officer, and Clause 8(III)(f) further affirms this role
while also authorising the Secretary to execute contracts on behalf of the
Akademi. The Secretary is, in practice, the senior-most officer functioning
from the Akademi’s head office in Delhi and has been consistently
recognised, including by the Parliamentary Standing Committee, as the
executive head of the institution. Even the Akademi, in its pleadings, has
acknowledged that the Secretary is the administrative-in-charge. On this
basis, it was urged that the Secretary squarely answers to the statutory
description of “employer” under Section 2(g), thereby vesting jurisdiction in
the LCC to enquire into the Petitioner’s complaint.
21. The Akademi and the Secretary wrongly rely on certain circulars to
claim that the President is the head of the institution. These only show the
President’s role in approving participation in national and international
events, awards, and grants, while day-to-day administration of the Delhi
office rests with the Secretary, who in fact also oversaw the Petitioner’s
appointment, leave applications, and office memoranda.
22. In terms of Section 4(i) of the Act, it is the employer who is required
to constitute an ICC at the workplace. The Akademi, in its counter-affidavit,
admits that the Secretary has sanctioned the constitution of the Akademi’s
ICC by circular dated 20th/23rd September, 2019. Being the Principal
Executive Officer, executive head, administrative-in-charge, person
discharging contractual obligations, and the sanctioning authority for the
ICC, the Secretary is undoubtedly the “employer” within the meaning of the
POSH Act, vesting exclusive jurisdiction in the LCC to inquire into
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By:NITIN KAIN
Signing Date:29.08.2025
17:24:25
complaints of sexual harassment against him.
Failure to constitute an ICC as required by law
23. The ICC is defined as a committee which is constituted as per the
stipulations of the POSH Act. The President suo moto referred the
Petitioner’s email dated 07th November, 2019 addressed to the Executive
Board outlining the acts of sexual harassment by the Secretary to the ICC
‘already existing at the Akademi’. The said ICC was in no manner compliant
with the Act, as it’s Presiding Officer was only a programme officer and not
a senior-level woman employee which is in contravention of Section 4(2)(a)
of the POSH Act. The ICC also had no external members as on 07th
November, 2019, which is in contravention of Section 4(2)(c) of the POSH
Act. Even as on date, there are no external members in the Akademi’s ICC.
24. The ex-post-facto additions of ‘external members’, through letter
dated 08th November, 2019 and email dated 05th December, 2019,
underscore the lack of a validly constituted ICC as on 07 th November, 2019.
One of the two ‘external members’ sought to be added by the President, Dr.
Vanita, is in fact a member of the Akademi’s Executive Board and not an
external member. Pertinently, the ICC is further required to be constituted
by an order in writing and displayed conspicuously in the workplace in
terms of Section 4(1)(a) read with Section 19(b) of the Act. The President’s
ex post-facto additions to the ICC were only communicated through private
letters addressed to the Petitioner, and do not set right the lack of a validly
constituted ICC. There was no validly constituted ICC on the date of the
Petitioner’s email.
25. Courts have emphasised the need for an ICC to be validly constituted
in compliance with the statutory provisions. Failure to set up an ICC in
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By:NITIN KAIN
Signing Date:29.08.2025
17:24:25
accordance with the Act has been held to go to the root of the constitution of
the ICC nullifying all proceedings before such an ICC.5 Thus, the LCC is
vested with exclusive jurisdiction to inquire into the Petitioner’s complaint.
Jurisdictional invalidity of the ICC report
26. Under Section 9(1) of the POSH Act, the ICC can act only on a
written complaint from the aggrieved woman, except in cases of incapacity
or death, and only with her consent.
27. The Petitioner never filed any complaint before the ICC. In her first
email of 07th November, 2019 to the President, she specifically denied its
jurisdiction and sought an independent external committee. The President
wrongly treated this as a complaint and referred it to the ICC without her
consent. She reiterated her objection on 09th and 13th November, 2019. Her
only written complaint regarding sexual harassment was filed with the LCC
on 29th November, 2019.
28. Upon receiving notice from the ICC on 29th November, 2019, the
Petitioner immediately objected to its jurisdiction, cited bias, and informed
them of her complaint before the LCC. She submitted five written responses
between 01st and 30th December, 2019, refusing to participate and requesting
closure. Nevertheless, the ICC continued to issue notices.
29. Without a written complaint, the ICC’s proceedings were void. The
Petitioner’s refusal to join them cannot be held against her. The ex parte
report of 14th January, 2020 is a nullity, vitiated by bias, as the ICC both
rejected her reasons for “withdrawal” and simultaneously closed the inquiry.
The Courts have condemned ICC inquiries that are coloured with bias and
5
Punjab & Sind Bank v. Durgesh Kawar, 2020 SCC OnLine SC 755; Punita K. Sodhi v. UOI, 2010 SCC
OnLine Del 3087, Rashi v. UOI, 2020 SCC OnLine Del 1555.
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Signing Date:29.08.2025
17:24:25
have directed the LCC to conduct inquiries in such cases.6
The Petitioner’s discharge from service is illegal and mala fide
30. The Discharge OM merits setting aside as it is arbitrary, perverse,
mala fide and based on irrelevant and inapplicable material. The discharge is
nothing but reprisal for the Petitioner’s refusal to submit to the Secretary’s
sexual demands and for instituting appropriate legal proceedings. It is trite
that while an employer has the discretion not to confirm a probationer, such
discretion cannot be exercised arbitrarily or with an oblique purpose.
Therefore, any discharge of a probationer though couched in innocuous
terms, is amenable to judicial review if it is shown to be tainted by mala fide
or based on irrelevant considerations.7 Further, if an organization chooses to
hold an enquiry into the alleged inefficiency of a probationer, the non-
confirmation of the probationer’s services as a result of that enquiry held
behind the back of the probationer would be punitive and liable to be set
aside.8 Reliance to this effect is placed on the decision of the Supreme Court
in Abhay Jain v. High Court of Rajasthan.9
31. Independent of mala fide, the discharge order is also liable to be
struck down for having been issued in blatant violation of this Court’s
interim directions dated 29th January, 2020 and 13th February, 2020. After
recording the undertaking made on behalf of the Akademi, this Court had
specifically directed that the Petitioner will continue to be on paid leave till
16th March, 2020; these orders were confirmed by the Division Bench, and
further continued on 16th March, 2020. Despite the undertaking that the
6
P. Sudha v. District Collector, Judgment dated 08th September, 2019 in W.P. No. 34081 of 2018
7
Pradip Kumar v. UOI, (2012) 13 SCC 182; Punjab & Sind Bank (supra); Ms. X v. High Court of
Madhya Pradesh, (2022) 14 SCC 187
8
Abhay Jain v. High Court of Rajasthan, (2022) 13 SCC 1.
9
(2022) 13 SCC 1
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Signing Date:29.08.2025
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Petitioner’s paid leave status would continue, the Akademi, without
disclosure of any ongoing inquiry into her so-called inefficiency and without
seeking leave of Court, proceeded to discharge her on 14 th February, 2020,
barely a day after reaffirming its undertaking. Such conduct, is ex facie
arbitrary, mala fide, and in defiance of judicial orders. The discharge OM is
therefore not only procedurally unsustainable but also demonstrates a
retaliatory intent to penalise the Petitioner for asserting her legal rights.
32. Without prejudice to the foregoing, the OM is additionally liable to be
quashed for the reasons set out below:
The Petitioner has been discharged from service pursuant to a “Review
Committee” unknown to law
33. The discharge OM rests on the recommendations of a so-called
“Review Committee.” However, neither the Constitution of the Akademi nor
its service bye-laws contain any provision for the constitution of such a
committee to assess the performance of a probationer. Under Clause 6(1) of
the bye-laws, the confirmation of a probationer is the exclusive prerogative
of the President, who is designated as the Controlling Authority. The
creation of a “Review Committee” is, therefore, a legal fiction without
statutory or contractual basis. This infirmity is aggravated by the Akademi’s
inconsistent and contradictory explanations regarding its composition: at
different stages it has claimed that the committee was (a) constituted by the
President but chaired by the Vice-President and comprised of “officers of
the Akademi” and “reputed individuals”; and, alternatively, that it consisted
of three convenors of languages handled by the Petitioner along with one
representative of the General Council. Despite repeated directions, the
Akademi has failed to disclose the exact composition, dates of meetings, or
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Signing Date:29.08.2025
17:24:25
minutes of deliberations of the committee. In these circumstances, the
Petitioner’s discharge, having been effected in a manner contrary to the
governing bye-laws, is unsustainable.
34. Even if, for argument’s sake, the President were assumed to have
delegated his powers to such a body, the process followed by the “Review
Committee” is in substance an enquiry conducted behind the Petitioner’s
back. The Supreme Court in Abhay Jain has held that where the termination
of a probationer is founded on findings of an enquiry conducted without
affording her an opportunity to be heard, the order is punitive and liable to
be struck down. The Office Memorandum here is not innocuous: it carries
stigmatic observations about the Petitioner’s alleged inefficiency and
unprofessionalism. Moreover, the Akademi has admitted that the
termination was premised on “unprofessionalism and misconduct.” This
renders the order punitive in character. Having passed such an order, without
a formal enquiry or even an oral hearing affording to the Petitioner, the
discharge is vitiated for violating the principles of natural justice. 10
35. The Akademi’s contention that the Petitioner had an appellate remedy
before the Executive Board under Rule 21 of the service bye-laws is devoid
of merit. The record shows that the Executive Board itself approved the
discharge, leaving no impartial forum before which an appeal could lie. A
termination founded on the opaque recommendations of a “Review
Committee” a body unknown to the bye-laws and constituted in a non-
transparent manner, cannot be countenanced. The order is, therefore,
arbitrary, mala fide, and liable to be set aside.
The recommendations of the Review Committee vitiated by extraneous
10
High Court of Gujarat v. Jayashree Chamanlal Buddhbhatti, (2013) 16 SCC 59
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considerations
36. The Discharge OM states that the “Review Committee” considered
office memoranda issued to the Petitioner and the Annual Performance
Appraisal Report, 201811 to arrive at its recommendations. The Akademi has
stated that the OMs dated 11th March, 2019; 18th March, 2019; 08th May,
2019 and 17th September, 2019 and APAR was considered by the “Review
Committee”.
37. The Court is empowered to examine such material in order to
ascertain whether the Petitioner’s discharge from service is based on
irrelevant considerations and/or punitive. Reliance to this effect is placed on
Dipti Prakash Bannerjee v. SNB National Centre for Basic Sciences12 and
Ms. X v. High Court of Madhya Pradesh. 13
38. In any event, reliance on the APAR was wholly impermissible. It is
trite that unless an APAR is communicated to the appraisee within a
reasonable amount of time, it cannot form the basis for non-confirmation of
services, even for a probationer.14
39. A perusal of the OMs considered by the “Review Committee”
manifests the mala fide conduct of the Akademi. None of the OMs reveal
the Petitioner’s performance was unsatisfactory or she was unsuitable.
Evidently, as set out below, each of the OMs considered were issued by the
Secretary, or at his behest, in terms of Clause 38(2) of the service bye-laws,
for frivolous reasons not attributable to the Petitioner, and as a result of the
Petitioner resisting his demands for sexual favours:
a. No OMs were issued by the Secretary against the Petitioner in 2018.
11
“APAR”
12
(1999) 3 SCC 60
13
(2022) 14 SCC 187
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b. OM dated 11th March, 2019 erroneously reprimanded the Petitioner
for failing to reply to a previous OM, that the Petitioner had, in fact,
responded to, which response had been misplaced by the officer concerned.
Accepting the Petitioner’s response, on 18th March, 2019 the Secretary
asked her to be more careful in the future.
c. Immediately after closing the previous OM and realizing that it could
not be used against the Petitioner, the Secretary directed issuance of another
OM on the very same day, i.e 18th March, 2019. The OM dated 18th March,
2019 recorded the lapses of Mr. JK Verma, who was under the supervision
of the Petitioner, and sought to attribute blame on the Petitioner for Mr.
Verma’s lapses. The Petitioner, in her response, acknowledged the lapses on
the part of Mr. Verma and informed the Secretary that Mr. Verma had taken
full responsibility for the mistake. Accepting the Petitioner’s response in this
regard, on 08th May, 2019, the Petitioner was warned to be careful in the
future.
d. Once again, on the very same day of the closure of the previous OM,
another OM dated 08th May, 2019 came to be issued for an alleged improper
leave application when the Petitioner sough leave for the last rites of her
grandmother. The Petitioner submitted her response clarifying the context in
which the application came to be submitted.
e. Upon returning from Ranchi around noon on 16 th September, 2019
where the Petitioner was sexually assaulted by the Secretary, the Petitioner
took a half-day leave. Nevertheless, an Office Memorandum dated 17 th
September, 2019 was issued by the Secretary, objecting to her absence from
office after returning from an outstation assignment, despite her arrival
14
Abhay Jain (supra); S.K. Kardam v. Punjab National Bank 2021 SCC OnLine Del 6920
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being only at noon. Notably, the same OM bears a handwritten note by the
Secretary himself, granting her permission to apply for half-day leave.
40. The Petitioner’s performance was in fact frequently commended by
authors, dignitaries, and external stakeholders. Seen in this light, the
President, ought to have considered whether the Petitioner was liable to
overcome her purported shortcomings in terms of the proviso to Rule 6(1) of
the service bye-laws before recommending the termination of her probation.
The Petitioner’s discharge being based on impermissible and irrelevant
material is perverse and liable to be set aside.
Retaliatory discharge of the Petitioner, vitiated by mala fides
41. The discharge of the Petitioner is tainted by mala fides, being a direct
reprisal for her complaint of sexual harassment. The Petitioner, from the
outset, was subjected to threats of adverse employment consequences by the
Secretary for not reciprocating to his unwelcome sexual advances. He
frequently warned her that her services would not be confirmed if she did
not accede to his demands, going as far as demanding “bodily satisfaction”
in exchange for confirmation of her services. Such acts also constitute
sexual harassment in terms of Section 3(2) of the Act, and a probationer
cannot be left remediless. The President, Vice-President, and members of
the ICC warned the Petitioner to withdraw her complaint against the
Secretary and “reconcile” with him in order to ensure that her services are
confirmed. Evidently, therefore, the Petitioner’s termination reeks of mala
fide for resorting to the due process of law against a perpetrator of sexual
harassment, more so given that all of the material considered for the
discharge were issued by, or at the behest of, the person accused of sexual
harassment.
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42. Time and again, courts have been implored to look into sexual
harassment complaints in their full context, and not in isolation. 15 The
Supreme Court has taken judicial notice of victimization of complainants of
sexual harassment, intended to suborn the dignity of women in workplaces,
and set aside retaliatory acts vitiated by mala fides.16 The Akademi’s
discharge of the Petitioner is a colourable exercise of power which ought not
to be countenanced. The Akademi should also be made to compensate the
Petitioner for its flagrant violations of the law and putting its organizational
heft behind the perpetrator while victimizing the Petitioner.
43. At this juncture, it must be noted that both the Akademi and the
Secretary have raised overlapping legal and factual grounds in support of
their petition. To the extent they advance common factual and legal grounds,
these are addressed together in the following discussion. Where distinct
pleas are urged on behalf of the Secretary, they are separately noted and
dealt with.
44. Ms. Geeta Luthra, Senior Advocate, representing the Akademi,
submits as follows:
45. There are two separate streams of cause of action which have been
improperly integrated and conflated: (a) The original case of the Petitioner
limited to seeking compliance of directions of LCC qua the alleged
complaint under the POSH Act and (b) the Petitioner’s attempt of
integrating a second distinct cause of action i.e., grievance against non-
confirmation of her probationary employment.
46. The two distinct causes of action cannot be merged integrated into
15
UOI v. Mudrika Singh, 2021 SCC OnLine SCC 1173; Punita Sodhi (supra)
16
Punjab & Sind Bank (supra)
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one proceeding. The unamended writ petition was confined only to reliefs
arising from the alleged sexual harassment complaint and could not have
been expanded midstream to impugn the discharge order.
The Petitioner made a formal written complaint to the Executive Board
and submitted to the jurisdiction of the ICC
47. On 07th November, 2019, the Petitioner addressed a written complaint
via email to the Executive Board of Respondent No.1, titled “Complaint
against K. Srinivasarao for acts of sexual harassment and assault.” In the
complaint, she explicitly sought the institution of an independent inquiry by
persons of impeccable integrity and experience in handling sexual
harassment complaints, thereby formally invoking the POSH framework and
submitting to the jurisdiction of the ICC. Having styled and worded her
email as a “Complaint,” the Petitioner cannot now be permitted to deny that
it fell within the POSH regime.
48. The Petitioner was fully conscious that the Executive Board is the
apex authority exercising control over the Akademi. In compliance with
Section 4 of the Act, the Executive Board referred the complaint to the ICC.
In her response dated 09th November, 2019, the Petitioner acknowledged
this fact and appreciated the reference.
49. The ICC was duly constituted as per law, comprising of a senior
member, 5 internal members and 3 external members in compliance with
Section 4 of the POSH Act.
50. The Petitioner actively participated in these proceedings, going so far
as to forward a copy of her police complaint dated 25 th November, 2019 to
the ICC.
51. On 29th November, 2019, the Petitioner lodged a complaint before the
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LCC, despite the ICC already having taken cognizance of her earlier
representation. Once a duly constituted ICC is seized of a complaint, the
LCC is precluded from exercising jurisdiction and entertaining the
Petitioner’s complaint at that stage, was inconsistent with the scheme of the
Act.
52. The ICC thereafter concluded its inquiry and rendered a detailed
report dated 14th January, 2020, accompanied by binding recommendations
under Section 13(2) of the POSH Act. In terms of Section 13(4), the
employer is under a statutory obligation to act upon such recommendations.
53. By voluntarily invoking the jurisdiction of the ICC, appreciating its
constitution, and participating in its proceedings, the Petitioner is now
estopped from challenging its competence. To permit her to re-agitate the
matter before the LCC would amount to forum shopping. This conduct
attracts the doctrine of election, as laid down in Dipankar Chakraborti v.
State of West Bengal & Ors.17
Report and Recommendations of ICC have attained finality and remain
unchallenged by the Petitioner
54. The inquiry report of the ICC, along with its findings and
recommendations, stands unchallenged and has, therefore, attained finality.
Under Section 13(2) read with Section 18 of the POSH Act and Rule 11 of
the POSH Rules, 2013, such findings are statutorily appealable before the
Industrial Tribunal-I at Rouse Avenue District Courts, New Delhi.
55. The Petitioner, however, has not preferred any appeal against the
ICC’s report before the designated appellate forum, nor has she assailed it in
the present proceedings. Having allowed the statutory remedy to lapse, it is
17
2020 SCC OnLine CAL 2112
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not open to her to indirectly undermine the ICC’s findings in the guise of
challenging jurisdiction. It is settled law that what cannot be done directly,
cannot be done indirectly. The judgment of this Court in Asha Rani v. Plan
International & Ors.18 is relied upon for the submission that proper remedy
is to file appeal under POSH Act.
No requirement under the POSH Act or Vishaka judgment that
chairperson of ICC ought to be senior to Respondent/ Parties
56. A perusal of the POSH Act makes it abundantly clear that there is no
requirement that members of ICC should be senior to the accused or any of
the parties. Section 4 lays down composition of ICC and it provides that
senior most female employee should be chairperson of the ICC. There is no
provision which mandates that the chairperson should be senior to
Respondent or for that matter the Petitioner. Further, there is no averment in
any of the pleadings on behalf of Petitioner that the chairperson of the ICC
ought to be senior to the Secretary.
57. Reliance to this effect has been placed on the judgment of the Calcutta
High Court in Banani Chattopadhyay v. Union of India,19 where the court
held that members of the ICC may not be a rank higher that of the
respondent under the provisions of the POSH Act. Any contrary
interpretation thereto would lead to disastrous consequences and in that
event the ICC would be denuded of its jurisdiction to conduct an enquiry.
58. Additionally, the Office Memorandum dated 9th September, 2016,
issued by the Department of Personnel and Training, clarifies that neither
the CCS (CCA) Rules nor the POSH Act impose any restriction on the
18
W.P. (C) 8603/2015
19
2022 SCC OnLine Cal 3592
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Chairperson of the ICC being junior in rank to the respondent officer.
The Secretary is not “Employer”
59. Under the Constitution of the Akademi, the executive authority vests
not in the Secretary but in the Executive Board. Article 14(i) expressly
provides that the Executive Board “…exercises the executive authority of
the Akademi subject to policy directives of the General Council…”. Further,
Article 14(ii) declares that the Executive Board is “… responsible for
supervision and control of the work of Akademi and its office…”. This
dovetails with Section 2 (g) (ii) of the POSH Act, which defines “employer”
to include any person responsible for the management, supervision, and
control of the workplace. On a plain reading, it is the Executive Board, and
not the Secretary, that answers to this description. The Explanation to
Section 2(g), which widens the ambit of “employer,” further supports this
interpretation.
60. The President, as the Head of the Executive Board, exercises
supervisory control over the functioning of the Akademi. No affairs of the
Akademi are conducted without the President’s approval. This is manifest
from the documents filed on behalf the Akademi which demonstrate that for
last more than 20 years approval of President is taken for affairs of the
Akademi. The Petitioner is well aware of this fact, having herself submitted
several proposals and tasks for the President’s approval during her tenure. In
this light, Petitioner’s attempt to portray the Secretary as the highest
authority in the Akademi, or at least within its Delhi office, is misleading.
Both the Constitution and the service bye-laws of the Akademi make it clear
that the Secretary functions as a record-keeper and a clerical head, acting
under the overall control of the Executive Board and the President. Lacking
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managerial or supervisory authority in his own right, the Secretary cannot be
regarded as an “employer” within the meaning of Section 2(g).
Non confirmation of services of Petitioner as her performance was
unsatisfactory during probation
61. The Petitioner was appointed by the Akademi vide letter dated 26th
December, 2017. The said letter clearly stipulated that the Petitioner would
be on probation for a period of two years, during which her services could
be discontinued without notice and without assigning any reason. The
Petitioner expressly accepted these terms vide her letter dated 02nd January,
2018. Accordingly, the relationship between the Akademi (as employer) and
the Petitioner (as employee) was contractual in nature, and the termination
of her services is not amenable to challenge by way of a writ petition.
Reliance is placed on MCD v. Suman Devi20 wherein it was held that it is
the prerogative of the employer to judge the suitability of a probationer, and
termination of probation does not affect any vested right. Further, in Dinesh
Kumar Mishra v. UOI21 the court observed that when terms between
employee and employer are governed by contract, there cannot be judicial
review of whether the employee was entitled to extension of probation or
not. Reliance is also placed on Rajasthan State Road Transport
Corporation v. Zakir Husain22 to argue that that protection under Article
311 is extended only to Central Government employees; as the Petitioner
was not a government servant, she cannot claim such safeguards. In any
event, temporary and probationary employees have no substantive right to
hold the post, and their services may be terminated without enquiry.
20
2014 (7) SLR 627 (DB)
21
2011 (181) DLT 36
22
(2005) 7 SCC 447
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62. During her tenure from 15th February, 2018, the Petitioner was
repeatedly found wanting in performance. Several Office Memoranda were
issued to her highlighting deficiencies, but no appreciable improvement was
observed. Accordingly, at the end of the two-year probationary period, her
services were not confirmed. The Discharge OM coincided with the date of
expiry of her probation and was thus a routine administrative act of non-
confirmation. The attempt of the Petitioner to make much of the date of
termination, it was submitted, is misplaced.
63. The Petitioner, as a probationer has no vested right to continue in
service. Courts have consistently held that termination of probation cannot
ordinarily be interfered with unless it is demonstrably punitive or stigmatic.
In the present case, the order of discharge is couched in neutral terms and
does not attract judicial interference. In this regard, reliance is placed on the
judgment in Abhijit Gupta v. SNB National23 and Raj Kumr Kaushik v.
Bharat Scouts & Guides24 where even adverse remarks such as “perverted
mind” and “dishonest duffer having no capacity to learn” were not
considered stigmatic so as to invalidate termination.
64. Additionally, reliance is placed on the decision in Pinaki Ghosh v.
International Airport Authority of India25 wherein the Court upheld that
termination of a probationer without assigning any reason is valid in law. It
was held that the employer has the authority to terminate the services of a
probationer at its discretion. Further reliance is placed on Thomas School
(ST) v. Manish Kaushik & Anr.26 where the Court observed that the
determination of whether a probationer’s services are satisfactory lies solely
23
(2006) 4 SCC 469
24
2017 (239) DLT 173
25
2007 (144) DLT 234
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with the employer. The Court cannot substitute its own opinion in place of
the employer’s assessment regarding the probationer’s performance.
65. Moreover, the Petitioner had an alternative remedy available under
the Bye-laws of the Akademi to challenge her non-confirmation, which she
consciously chose not to avail.
Prayers in the Writ Petition
66. The writ petition, as originally filed, was limited to seeking
enforcement of the LCC’s interim directions granting the Petitioner three
months’ paid leave commencing 16th December, 2019. That period
concluded on 16th March, 2020. Despite the fact that her services had been
lawfully discontinued on 14th February, 2020, the Petitioner has continued to
draw emoluments until the present day, amounting to over INR 30 lakhs,
thereby securing more than the interim relief she initially claimed.
67. It was only thereafter that the Petitioner sought, by way of
amendment, to enlarge the scope of the writ petition to assail the Discharge
OM and to seek reinstatement and other consequential reliefs.
68. This amounts to an impermissible alteration of the very character of
the petition. Order VI Rule 17 of the Code of Civil Procedure, 190827 does
not permit the substitution of an entirely new cause of action under the guise
of amendment. Reliance is placed on the decision of this court in Director
General Foreign Trade v. M/s Masumi Overseas Pvt Ltd28 wherein it was
held that amendments which seek to add entirely new cause of action which
amount to new plaint in place of what was originally there would normally
be refused by Court.
26
2017 (4) AD Delhi 734
27
“CPC”
28
2015 (9) AD Delhi 635 (DB)
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69. In addition to the above submissions, the following submissions have
been made by Mr. Ashish K. Dixit on behalf of the Secretary:
Issue of jurisdiction determined by ICC report and recommendation
70. The issue of jurisdiction has been exhaustively dealt by ICC in its
report and recommendation dated 14th January, 2020. The ICC, after
considering the material before it, categorically held that it was the
competent forum to enquire into the allegations, and that the Secretary does
not fall within the definition of “employer” under the POSH Act.
71. Pertinently, the Respondent No. 2/LCC has produced no material,
pleading or law to demonstrate the basis for entertaining the complaint or
issuing interim recommendations dated 16th December, 2019 and 16th
January, 2020. The Secretary’s case, therefore, is that the LCC acted wholly
without jurisdiction in assuming seisin of the matter.
Secretary not Employer under POSH Act
72. The Secretary himself is an employee of the Akademi, appointed by
the Executive Board under Article 8(i) of the Akademi’s Constitution. As
such, he cannot, by any legal fiction, be treated as the “employer” under the
POSH Act. The Petitioner’s own appointment was made by the President of
the Akademi, who, under Clause 3(d)(ii) of the service bye-laws, is also
designated as her controlling authority. Therefore, the Petitioner’s attempt to
characterise the Secretary as the employer is contrary to the governing
documents of the institution.
73. The Akademi is neither the “local authority” nor the “appropriate
government” as mentioned in Section 2 (g)(i) of POSH Act. The Akademi
does not fall within the definition of local authority as defined under Section
3(31) of the General Clauses Act, 1897. The Appropriate Government under
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the POSH Act is the Central Government and admittedly the Akademi is not
Central Government Department. On the contrary, it autonomous body
registered as Society under the Society Registration Act, 1860. Mere fact
that government is funding the Akademi will not make the Akademi Central
Government or Department within the meaning of word appropriate
government as used in POSH Act. It is further undisputed that the
employees of the Akademi are not Central Government employees.
74. The structure of the Akademi, as delineated in its Constitution, leaves
no ambiguity. Article 14(i) vests the executive authority of the Akademi in
the Executive Board, while Article 14(ii) makes the Executive Board
responsible for the supervision and control of the work of the Akademi and
its offices. A bare reading of Article 14 (i) (ii) in conjunction with Section 2
(g)(ii) of POSH Act, the only conclusion which can be drawn is that the
Secretary is not the employer under the POSH Act. For ease of reference the
same is reproduced herein below:
75. The Secretary does not possess any independent Executive Authority.
He is bound to act under the directives of the Executive Board and the
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President. Under Article 5 of the Constitution of the Akademi, the President
also possesses the power to take decisions on behalf of the General Council
or the Executive Board. In this scheme, the Secretary is nothing more than a
functionary or custodian of records and cannot be elevated to the position of
“employer” as envisaged in the POSH Act.
As per the scheme of POSH Act there can be only one Employer
76. The statutory framework of the POSH Act does not contemplate
multiple “employers” within a single organisation. The Act casts a cluster of
obligations on the employer, including the constitution of ICC (Section 4),
compliance with interim recommendations (Section 12), implementation of
duties to prevent and redress sexual harassment (Section 19), and reporting
obligations (Section 22). These duties are designed to be discharged by one
body or authority, not fragmented across multiple actors. Accepting the
Petitioner’s contention that both the President and the Secretary could
simultaneously qualify as “employer” would render compliance with these
statutory duties impossible and thereby defeat the object and efficacy of the
Act.
As per LCC, the President is the Employer
77. The Petitioner’s writ petition is founded upon interim
recommendations dated 16th December, 2019 and 16th January, 2020 issued
by the LCC under Section 12 of the POSH Act. The said provision expressly
contemplates that such recommendations are to be addressed to the
“employer”. In this case, the interim recommendation dated 16 th January,
2020 was addressed to the President of the Akademi. This, in itself,
demonstrates that even the LCC recognised the President, and not the
Secretary, as the employer of the Akademi within the meaning of the Act.
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Petitioner aware that approval of president is required and taken for day to
day affairs of the Akademi.
78. The Petitioner’s plea that the Secretary alone exercised control over
the Akademi’s affairs, and that the President had no role in the day-to-day
functioning, is factually incorrect and misleading. During her tenure, the
Petitioner herself prepared and routed numerous proposals relating to events,
seminars, and delegations, all of which were submitted for the President’s
approval through proper channel. The Petitioner is well aware that such
approvals were invariably obtained and recorded on file. Her omission to
disclose these facts in the writ petition is a deliberate attempt to mislead this
Court.
79. The Secretary has placed on record several such proposals initiated by
the Petitioner, which were thereafter approved by the President. These
documents have not been denied by the Petitioner in her short response or
otherwise. By way of example, documents annexed with the counter-
affidavit show that proposals authored by the Petitioner were expressly
forwarded for the President’s sanction before being acted upon.
80. This practice has not only been consistent since the commencement of
the Petitioner’s employment but continued even after she lodged her
complaint on 07th November, 2019. The documentary record makes it plain
that the President’s approval was integral to the Akademi’s functioning. The
Petitioner’s attempt to now contend that the President had no supervisory
role is clearly contrary to her earlier stand and is unsustainable.
ANALYSIS AND FINDINGS
81. The first issue to be addressed is the Akademi’s preliminary objection
to the amendment of pleadings in W.P. (C) No. 1103/2020. According to the
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Akademi, the amendment changes the character of the writ petition itself
and is impermissible under Order VI Rule 17 of the CPC, making the
additional reliefs unsustainable. This objection, however, is misplaced. As
the writ petition is instituted under Article 226 of the Constitution, the
technical constraints of the CPC do not govern the exercise of jurisdiction
with the same rigidity. In any event, the amendment permitted on 12 th May,
2021 does not introduce a fresh cause of action, but merely brings on record
subsequent developments that are intrinsically connected with the
Petitioner’s original grievance. The proceedings have remained pending
since 2020, with the LCC’s proceedings itself under stay. In such
circumstances, to exclude the additional reliefs on a narrow technical plea
would defeat the cause of justice. This Court therefore finds no merit in the
objection, which stands overruled.
Whether the LCC has the jurisdiction to inquire into the Petitioner’s
complaint of sexual harassment?
82. The primary issue for consideration is whether the LCC has the
jurisdiction to inquire into the Petitioner’s complaint of sexual harassment.
Section 6 of the POSH Act delineates the jurisdiction of the LCC and
empowers it to inquire into complaints in two specific situations: first, where
the complaint is against the employer, and second, where the establishment
has failed to constitute an Internal Committee in accordance with the statute.
The enquiry, therefore, turns on whether the Secretary of the Akademi falls
within the definition of “employer” within the meaning of Section 2(g) of
the POSH Act.
83. Section 2(g) of the POSH Act defines “employer” in a broad and
inclusive manner:
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“g) “employer” means –
(i) in relation to any department, organisation, undertaking,
establishment, enterprise, institution, office, branch or unit of the
appropriate Government or a local authority, the head of that
department, organisation, undertaking, establishment, enterprise,
institution, office, branch or unit or such other officer as the
appropriate Government or the local authority, as the case may be,
may by an order specify in this behalf;
(ii) in any workplace not covered under sub-clause (i), any person
responsible for the management, supervision and control of the
workplace.
Explanation. –For the purposes of this sub-clause “management”
includes the person or board or committee responsible for
formulation and administration of polices for such organisation;
(iii) in relation to workplace covered under sub-clauses (i) and (ii), the
person discharging contractual obligations with respect to his or her
employees;
(iv) xx … xx … xx;”
84. The Petitioner submits that clause (i) of Section 2(g) is attracted in the
present case, as the Akademi is an institution wholly financed by the
Government of India through the Ministry of Culture. On this footing, it is
urged that the Akademi must be treated as an “organisation or institution of
the appropriate Government”, rendering its head the “employer” for
purposes of the Act.
85. The Akademi, on the other hand, contends that it is an autonomous
body registered under the Societies Registration Act, 1860, and does not
constitute a department of the Central Government or a “local authority” as
defined under the General Clauses Act, 1897. Its registration, funding
pattern, and constitution demonstrate its independent character. The
responsibility for overall supervision and control is vested in the Executive
Board, with the President as its head, and not in the Secretary.
86. The Court is of the opinion that the term “employer” under Section
2(g) cannot be construed in a narrow, formalistic manner. The POSH Act is
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a remedial statute enacted to secure a safe and dignified workplace for
women. Its provisions must, therefore, be given a purposive interpretation,
lest the very mischief it seeks to remedy is left unchecked. The definition of
“employer” is deliberately cast in wide terms to ensure accountability of
those in positions of authority – whether that authority is derived from the
organisation’s governing instruments/framework or from de facto or
effective control over the workplace.
87. The Secretary stresses that he is himself an appointee of the Executive
Board under Article 8 of the Akademi’s Constitution, functioning under the
control of the President, and therefore cannot be treated as the “employer”
within the meaning of Section 2(g). According to him, it is the President, as
head of the Executive Board, who alone qualifies as “employer” for the
purposes of the POSH Act.
88. However, this contention cannot be accepted in view of the statutory
definitions. Section 2(o)(i) of the Act defines “workplace” to include “any
department, organisation, undertaking, establishment, enterprise,
institution, office, branch or unit which is established, owned, controlled or
wholly or substantially financed by funds provided directly or indirectly by
the appropriate Government.” It is an admitted position that the Akademi
receives full financial support from the Ministry of Culture and functions
under its aegis. Its Head Office in Delhi is, therefore, a “workplace” within
the meaning of Section 2(o)(i). Consequently, the definition of “employer”
under Section 2(g)(i) stands attracted.
89. It is in this context necessary to delineate the role and functions of the
Secretary. Clause 8(I) of the Akademi’s Constitution expressly designates
the Secretary as its “Principal Executive Officer”. Under Clause 8(III)(f), the
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Secretary is empowered to execute contracts on behalf of the Akademi. The
Parliamentary Standing Committee has also acknowledged the Secretary as
the principal executive and administrative head of the Akademi.
Importantly, even in the pleadings and documents placed on record by the
Akademi, the Secretary is described as the administrative-in-charge of the
institution.
90. In these circumstances, the Secretary, being the senior-most officer at
the Delhi Head Office and vested with day-to-day administrative and
employment responsibilities, answers to the description of “employer”
within the meaning of Section 2(g)(i). The attempt to distance him from this
responsibility by reference to the formal supervisory role of the President
overlooks the functional reality of the Secretary’s position. To hold
otherwise would reduce the statutory protection under the POSH Act to an
empty formality, contrary to both its language and its remedial purpose.
91. Even assuming, arguendo, that the Akademi does not fall within
Section 2(g)(i), the Secretary would still come within the sweep of Section
2(g)(ii), which defines “employer” as any person responsible for the
“management, supervision and control” of the workplace. The Explanation
deliberately widens the scope of “management” to include those entrusted
with administration and policy implementation. On the record, the Secretary
is expressly recognised as the principal executive officer of the Akademi and
is responsible for its day-to-day administration. His position therefore
squarely answers the test under clause (ii).
92. The same conclusion follows under Section 2(g)(iii), which treats
“employer” as the person discharging contractual obligations towards
employees. The Secretary executes contracts on behalf of the Akademi and
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holds the power to appoint staff, as evidenced by Clauses 8(III)(f) and
14(VII) of its Constitution. These provisions make plain that the Secretary
plays a decisive role in the employment relationship and cannot be reduced
to the position of a mere custodian of records or conduit for approvals. By
virtue of these functions, he squarely falls within the definition of
“employer” under the Act.
93. The wide and purposive definition of “employer” under the
framework of POSH Act is designed precisely to prevent internal hierarchies
from frustrating accountability. The focus must be on the functional role of
the individual concerned, whether he wielded authority over administration,
personnel decisions, and workplace management. In this case, the
Secretary’s role is unmistakable: he was part of the selection committee that
appointed the Petitioner; she addressed her pre-appointment correspondence
to him; he sanctioned the ICC; issued memoranda regarding her service; and
exercised powers to grant leave to the staff. The Akademi’s attempt to
characterise him as subordinate to the President is belied by the Bye-Laws
which reveal that both the President and Secretary function under the
general superintendence of the Executive Board. While the President may
hold supervisory powers, it is the Secretary who serves as the executive head
in the day-to-day running of the Akademi. On any functional assessment, he
answers to the definition of “employer” under the Act.
94. The Akademi relies on the judgment of the High Court of Bombay in
Dr. David G. Samuel v. Collector/District Magistrate, Pune & Ors.29 to
urge for a narrow construction of “employer.” Such reliance, however, is
misplaced. The facts of that case were materially distinct: the respondent in
29
Decision dated 30th November, 2021 in WP(C) 3784 of 2021
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a sexual harassment inquiry sought to thwart a duly concluded proceeding
by contending that, as President of the Governing Board of Trustees, he
himself was the “employer” and thus beyond the Internal Committee’s
reach. The High Court of Bombay decisively rejected this contention,
observing that the objective of the Act is not to shield the accused but to
insulate the inquiry mechanism from employer influence. Far from assisting
the Akademi, the ratio of that decision reinforces a purposive reading of the
Act so that its remedial safeguards are not rendered illusory.
95. The reliance on the decision of the High Court at Calcutta in Banani
Chattopadhyay v. State of West Bengal30 is equally unavailing. When this
Court’s decision dated 25th October, 2021 was cited before the High Court at
Calcutta, it expressly distinguished the facts of the case before it from those
in the present matter. Consequently, Banani Chattopadhyay turned on
materially different facts and, having itself noted the distinction from this
Court’s decision of 25th October, 2021, is inapplicable to the present
controversy.
96. As regards the Secretary’s contention that under the scheme of the
POSH Act there can be only one “employer,” and that since the President is
the employer the Secretary cannot simultaneously be treated as such, the
argument is misconceived. The Act is a piece of social welfare legislation
and must be interpreted in a manner that advances its object of ensuring
accountability and protection against workplace harassment. To restrict the
definition of “employer” in the narrow manner suggested would defeat the
very purpose of the Act by allowing individuals exercising supervisory or
administrative control to evade responsibility by shifting the designation of
30
2022 SCC OnLine Cal 3592
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“employer” onto another.
97. In sum, the statutory framework, read in light of its beneficial purpose
as affirmed in Sohail Malik v. UOI,31 supports a broad construction of the
term “employer” so as to secure protection against workplace harassment.
On a functional appraisal, the Secretary of the Akademi answers to that
description under Section 2(g)(i), and in any event within the scope of
Section 2(g)(ii) and (iii). To hold otherwise would be to elevate form over
substance and to frustrate the very object of the legislation. This Court
therefore holds that the LCC had jurisdiction to inquire into the Petitioner’s
complaint against the Secretary of the Akademi.
98. The Petitioner has also urged that the ICC of the Akademi was not
validly constituted and, in any event, that she never submitted her complaint
to it. In her view, the ICC therefore lacked jurisdiction from the outset.
However, in light of the discussion above, it is unnecessary to enter into
questions regarding the ICC’s composition or whether its jurisdiction was
ever invoked. What is determinative is that, under the statutory framework,
the ICC has no authority to entertain a complaint against the Secretary, who
qualifies as an “employer” under Section 2(g). Any report or
recommendation issued by the ICC in relation to such a complaint is,
accordingly, without authority of law and non est.
99. With respect to the Akademi’s contention that the Petitioner, having
invoked the ICC’s jurisdiction and participated in its proceedings, is
estopped from questioning its competence and that her recourse to the LCC
amounts to forum shopping, it is pertinent to note that the Petitioner
31
2023 SCC OnLine Del 3764. See also: Sukalyan Halder v. State of West Bengal, Judgment dated 08th
September, 2023 in W.A. No. 18829 of 2023
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consistently objected to the ICC’s jurisdiction at every stage. In her very
first email dated 07th November, 2019 to the President, she expressly denied
its jurisdiction and requested an independent external committee. These
objections were reiterated on 09th and 13th November, 2019. On 29th
November, 2019, she lodged a formal complaint of sexual harassment
before the LCC- not subsequent to the ICC’s decision but prior to the
commencement of its proceedings. Upon receipt of the ICC’s notice on the
same day, she immediately objected to its jurisdiction, pointed to bias, and
apprised the ICC of her complaint before the LCC. Between 01st and 30th
December, 2019, she filed five written responses refusing to participate and
requesting closure of the proceedings. Despite this, the ICC continued to
issue notices and, by its report dated 14th January, 2020, simultaneously
rejected her objections while closing the inquiry. In these circumstances, the
doctrine of election relied upon by the Akademi has no application.
Whether the termination of the Petitioner’s services is liable to be set
aside?
100. Through the amendment, the Petitioner has also assailed the
termination of her services during the pendency of these proceedings. The
Akademi argues that she was on probation for a period of two years, which
came to an end on 14th February, 2020. Her services were discontinued on
the basis of the Review Committee’s assessment and the satisfaction of the
President. Since her appointment was contractual in nature, the Akademi
contends that the termination of a probationer is not open to challenge under
writ jurisdiction. In support, reliance is placed on MCD v. Suman Devi,32
where it was held that assessing a probationer’s suitability is the exclusive
32
2014 (7) SLR 627 (DB)
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prerogative of the employer, and such termination does not impinge upon
any enforceable right. Reference is also made to Dinesh Kumar Mishra v.
Union of India,33 which holds that when employment is governed by
contract, issues such as extension or confirmation of probation fall outside
the scope of judicial review.
101. This Court is mindful of the limited scope of judicial review in
matters of probation and confirmation of service. At the same time, it is well
established that even an order styled as a discharge simpliciter is open to
interference where it is shown to be vitiated by mala fides or founded on
extraneous considerations. In this regard, it is apposite to refer to the
decisions of the Supreme Court in Ms. X v. High Court of Madhya
Pradesh,34 Punjab & Sind Bank v. Durgesh Kuwar35 and Dipti Prakash
Banerjee v. SNB National Centre for Basic Sciences.36 As held in Dipti
Prakash Banerjee, Courts are not precluded from lifting the veil of
termination simpliciter to examine whether the action is a subterfuge to
punish a probationer for extraneous reasons.
102. Although the impugned termination order is styled as a discharge
simpliciter, the surrounding circumstances leave little doubt that it was
vitiated by mala fides. The same is apparent from the following:
(i) The Petitioner has alleged that the President and Vice-President
attempted to pressure her into withdrawing her complaint against the
Secretary. It is pertinent to note that Section 19 of the POSH Act places a
statutory obligation on the employer to extend institutional support to the
aggrieved woman, including: (a) assisting her, should she choose to file a33
2011 (181) DLT 36
34
(2022) 14 SCC 187
35
(2020) 19 SCC 46Signature Not Verified
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complaint under the Indian Penal Code, 186037 or any other applicable law;
(b) initiating appropriate action under the IPC or any other prevailing law
against the perpetrator, or where the perpetrator is not an employee, taking
necessary steps at the workplace where the incident occurred, if the
aggrieved woman so desires. However, instead of extending the institutional
support mandated by law, the President, by letter dated 08th November,
2019, requested the Deputy Commissioner of Police, P.S. Parliament Street,
to keep the Petitioner’s criminal complaint against the Secretary pending
until the ICC inquiry was completed. The Petitioner immediately raised
concern in her letter dated 09th November, 2019 to the Deputy Secretary,
which was also copied to the Executive Committee. She reiterated this
grievance in her email of 09th December, 2019, responding to the third
notice issued by the ICC, where she recorded that during a meeting on 5 th
December 2019 the President had pressured her to withdraw her complaint
and made it clear that no action would be taken against the Secretary.
(ii) Despite interim orders of the LCC and of this Court directing that the
Petitioner be treated as on paid leave, the Akademi proceeded to terminate
her services by the Discharge OM, without apprising this Court of the
impending action. The termination coincided with the pendency of the
sexual harassment complaint against the Secretary, a timing that, on its face,
suggests a retaliatory intent. The Executive Board, acting with due propriety,
ought to have deferred any such step until the complaint was resolved.
(iii) The manner in which the Petitioner’s services were terminated is
equally questionable. The termination was purportedly based on36
(1999) 3 SCC 60
37
“IPC”
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recommendations of a so-called “Review Committee,” a body unknown to
either the Akademi’s Constitution or its Service Bye-laws. Clause 6(1) of
the Bye-laws vests the power to confirm a probationer solely in the
President, as Controlling Authority. Even if delegation were assumed
permissible, the procedure adopted bore all the hallmarks of a disciplinary
enquiry yet was carried out without affording the Petitioner any opportunity
of hearing. Such a process cannot be cloaked as a routine appraisal of
probation.
(iv) The Office Memoranda forming the basis of the Review Committee’s
assessment originated either from the Secretary himself or at his direction,
the same individual against whom the sexual harassment complaint was then
pending. The Supreme Court in Punjab & Sind Bank has held that an order
discharging a female employee on the basis of material supplied by, or at the
behest of, the very person accused of harassment constitutes unfair treatment
and is vitiated by mala fides. In the present case, the Akademi has not
produced any independent or neutral assessment of the Petitioner’s
performance to justify the termination.
103. Viewed cumulatively, these circumstances demonstrate that the
Petitioner’s termination was not a bona fide exercise of administrative
discretion but a classic case of colourable exercise of power. An ostensibly
lawful authority, to discharge a probationer, was invoked for an
impermissible and retaliatory purpose: to stifle a legitimate complaint of
sexual harassment and shield the Secretary from scrutiny. This amounts to
malice in law. Equally, the sequence of coercion, retaliatory steps, and
procedural improprieties establish malice in fact. The Discharge OM is,
therefore, unsustainable and liable to be set aside.
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104. The Akademi’s contention that the Petitioner had a statutory right of
appeal to the Executive Board under Rule 21 of the Service Bye-laws also
does not withstand scrutiny. The discharge order was itself approved by the
Executive Board, thereby rendering the so-called appellate remedy illusory.
An appeal cannot lie to the very authority that sanctioned the impugned
action. This viewed alongside the opaque constitution of the “Review
Committee” and the irregular process it adopted, the discharge order cannot
be sustained.
105. Courts have consistently stressed that allegations of sexual harassment
must be assessed in their full context and not in isolation. The Supreme
Court has repeatedly taken judicial notice of the entrenched pattern of
victimisation of complainants – often through retaliatory measures designed
to silence them and erode their dignity at the workplace. In such cases,
courts have not hesitated to set aside administrative actions tainted by mala
fides.38 The Akademi’s discharge of the Petitioner falls squarely within this
category. The impugned order is a colourable exercise of power, effected
through a procedure unknown to law, and based on irrelevant and stigmatic
material, all without affording the Petitioner any opportunity of hearing. It
thus stands vitiated as arbitrary, violative of natural justice, and
unsustainable in law.
CONCLUSION
106. In view of the foregoing, the Secretary is held to be an “employer”
within the meaning of Section 2(g) of the POSH Act. Consequently, the
complaint of sexual harassment against the Secretary would lie only before
the LCC and the ICC would lack jurisdiction to entertain or inquire into any
38
Punjab & Sind Bank (supra), X v. State of MP (supra)
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such complaint. Furthermore, the termination of the Petitioner’s services is
found to be vitiated by illegality and mala fides.
107. Before parting, it must be observed that the present controversy could
well have been avoided had the Akademi, as a premier cultural institution,
acted with the degree of openness and responsibility the law demands. When
confronted with a complaint of sexual harassment against its own Secretary,
the Akademi could have easily agreed to independent examination by the
LCC, thereby reinforcing institutional confidence in its processes and
upholding the statutory framework of the POSH Act. Instead, it chose to
resist such scrutiny through technical objections and, simultaneously,
terminated the services of the complainant during the pendency of
proceedings. The Akademi’s assertion that the Petitioner continues to draw
salary as a probationer without discharging duties ignores that this situation
is a direct consequence of the Akademi’s own conduct. Rather than
accommodating her in another branch office or providing a work
environment free from hostility, the Akademi elected to treat her as an
adversary. The statute itself contemplates interim measures, including paid
leave, to protect the dignity and security of a complainant. Accordingly, the
consequences of present arrangement which affords the Petitioner salary
without work, cannot be attributed to the Petitioner.
108. Institutions such as the Akademi shoulder not only administrative
obligations but also a responsibility to exemplify the creation of safe and
dignified workplaces. Rather than perceiving the LCC’s role as intrusive, the
Akademi could have treated it as an opportunity to ensure transparency and
restore faith among its employees and the public at large.
109. The POSH Act was enacted to provide effective remedies and to
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prevent precisely such situations where hierarchies within organisations can
obstruct a fair inquiry. Compliance with its mandate is not a matter of
discretion but a legal obligation. The Akademi’s approach in this case serves
as a reminder that statutory bodies must not be seen as protecting individuals
in positions of power at the expense of those who seek justice.
110. In the result, for the reasons recorded hereinabove, this Court holds
that the LCC had jurisdiction to inquire into the Petitioner’s complaint and
that the termination of her services was vitiated by mala fides and non-
compliance with the principles of natural justice. The Discharge OM dated
14th February, 2020 is accordingly quashed. The complaint filed by the
Petitioner shall proceed before the LCC in accordance with law.
111. Accordingly, the petitions are disposed of in the following terms:
(a) The Inquiry report dated 14th January, 2020 of the ICC and its opinion
and recommendations is declared to be without jurisdiction and non est.
(b) The LCC is directed to proceed with the Petitioner’s complaint
expeditiously and in accordance with the provisions of the POSH Act.
(c) The Office Memorandum dated 14th February, 2020 terminating the
services of the Petitioner is quashed.
(d) The Petitioner shall be deemed to continue in service as a probationer,
in terms of her appointment letter, until the conclusion of the inquiry before
the Local Committee. She is reinstated to her post with continuity of service,
full back wages, and all consequential benefits.
(e) The Akademi is directed to immediately release the Petitioner’s salary
for the current month and clear outstanding salary arrears, if any, within four
weeks from today. An affidavit confirming compliance with these directions
shall be filed by the Akademi within two weeks thereafter.
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(f) The Petitioner shall be deemed to be on paid leave till the Local
Committee passes appropriate interim orders with regard to provision of a
safe working environment to her.
(g) Upon conclusion of the inquiry by the Local Committee, the
competent authority of the Akademi shall be at liberty to review the
Petitioner’s performance and take a decision on her employment status in
accordance with law.
(h) In view of the finding that the Secretary falls within the definition of
“employer” under Section 2(g) of the Act, and that any complaint against
him would not lie before the Internal Committee, the issue of whether the
Internal Committee was validly constituted and its details displayed under
Section 19 of the Act is left open.
(i) The Petitioner’s claim for compensation on account of alleged mental
trauma, pain, suffering, and emotional distress is left open for determination
by the Local Committee in terms of Section 15 of the POSH Act.
112. The petition W.P.(C) 1103/2020, is thus allowed in the above terms.
The Petition filed by the Akademi bearing No. W.P.(C) 2546/2021 stands
dismissed.
113. Having regard to the sensitivity of the subject matter and in order to
safeguard the identities of both the Petitioner and the Secretary, it is directed
directs that the name of the institution (Respondent No.1 in W.P.(C)
1103/2020) as well as the secretary be redacted in the version of this
judgment that is released into the public domain.
114. Disposed of along with pending applications.
SANJEEV NARULA, J
AUGUST 28, 2025/nk
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By:NITIN KAIN
Signing Date:29.08.2025
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