2026 LLR 146
GAUHATI HIGH COURT
Hon'ble Mr. Ashutosh Kumar, CJ.
Hon'ble Mr. Arun Dev Choudhury, J.
WA No. 149/2025, Dt/ 9-12-2025
The Airports Authority of India and Ors.
v.
Shri Praveen VS and Anr.
SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013 Disciplinary proceedings after conciliation Whether maintainable A lady officer respondent No. 2, working under the supervision of respondent No. 1, had lodged a sexual harassment complaint against respondent No. 1 Both parties opted for conciliation The conciliation succeeded to the extent that both agreed to not work in proximity The ICC, after a curtailed inquiry, concluded that the evidence was lacking The complainant objected to this observation and cited a screen shot of an objectionable message The matter was remitted to the ICC which declined reopen the proceedings in view of the concluded conciliation The employer, in view of the new material, initiated an independent department inquiry A writ petition was preferred against the initiation of department inquiry The learned Single Judge quashed and set aside the department proceedings Hence, the present intra court appeal Held, section 10(4) of the PoSH Act makes it clear that any further inquiry after the conciliation by the IC or the LC is barred but it does not extent to the employer's independent disciplinary jurisdiction which flows from service rules Section 19 of the PoSH Act casts an obligation on the employer to ensure a safe work place The statutory duty cannot be negated merely because the complainant agreed to conciliate at one stage and when the ICC declined to proceed further on the objection of the aggrieved woman owing to the bar under section 10(4) of the PoSH Act The bar under section 10(4) of the PoSH Act does not extinguish an employer's authority under the service rules to inquire into the misconduct of the employee The ICC proceedings do not substitute disciplinary jurisdiction unless the service rules so provide The PoSH Act is a minimum protective statute and does not curtail disciplinary action, unless expressly so provided The said part of the impugned judgment is not sustainable and is set aside Appeal is partially allowed. Paras 10 to 17
For Petitioner: Mr. R. Dubey and Ms. A.B. Kayastha, Advocates.
For Respondent No. 1: Mr. R. Sharma, Sr. Advocate, a/b Ms. P. Phukan, Advocate.
IMPORTANT POINTS
Note: This judgment is relevant even after the notification of the Labour Codes as the PoSH Act has not been subsumed by the Codes.
Judgment & Order (Oral)
Ashutosh Kumar, CJ.1. We have heard Mr. R. Dubey, learned Advocate for the appellants and Mr. R. Sharma, learned Senior Advocate, assisted by Ms. P. Phukan for the respondent No. 1.
2. This intra-Court appeal is directed against the judgment dated 26-02-2024 of the learned Single Judge passed in WP (C) No. 949/2023, whereby the observation in the Internal Complaints Committee (hereinafter to be referred as ICC) Report that evidence was lacking, was expunged and the employer's decision to institute an independent Departmental Proceeding against the respondent No. 1/charged officer was set aside, principally on the ground of section 10(4) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter to be referred as the 2013 Act).
3. The appellant/employer contends that the learned Single Judge exceeded the writ jurisdiction in disturbing the factual findings of the ICC and that section 10(4) of the 2013 Act does not bar initiation of disciplinary action by the employer on the basis of independent material, particularly, where the ICC itself had declined to proceed after the conciliation, and that the complainant's post conciliation objection and a new material (screenshot) required fresh consideration, which the employer attempted to address through Departmental Proceedings.
4. The respondent No. 2, a lady Officer working under the supervision of respondent No. 1, had lodged a complaint of sexual harassment against the respondent No. 1, which was placed before the ICC. During the proceedings, both the parties opted for conciliation on account of workplace disturbance. Conciliation succeeded to the extent that both agreed not to work in proximity.
5. The ICC, after a curtailed inquiry (the complainant/respondent No. 2 not pressing for a full inquiry due to mental distress), concluded that evidence was lacking. Later, the complainant objected to such observation in the ICC Report of there being no evidence and cited a screenshot of an objectionable message sent to her by respondent No. 1.
The matter was remitted to ICC, which declined to reopen the proceedings in view of the concluded conciliation.
6. The appellant/employer faced with the new material in workplace, initiated an independent departmental enquiry. The writ petition preferred by the respondent No. 1 against such disciplinary action [WP (C) No. 949/2023] was allowed and the Departmental Proceedings initiated against him vide order dated 13-01-2023 issued by the Disciplinary Authority appointing the Inquiry Officer to inquire into the charges and the Memorandum dated 25-10-2022, initiating the Departmental Proceedings against the respondent No. 1, were set aside and quashed.
Simultaneously, considering the peculiar nature of the case at hand and also after considering all the materials on record and keeping in mind the dignity and reputation of the respondent No. 2, the learned Single Judge expunged the first paragraph of the conclusion of the Inquiry Report dated 02-11-2022 declaring that there was no evidence regarding the sexual harassment by respondent No. 1.
7. There is no effective resistance by the appellant/employer against the impugned judgment expunging that part of the ICC Report, which held that there was lack of evidence substantiating the charge as the inquiry was curtailed midway without the Committee having sufficient material before it to say that there was lack of evidence.
8. The question, therefore, before this Court is whether the learned Single Judge was justified in quashing the initiation of the Departmental Proceedings against the respondent No. 1 after conciliation, primarily on the ground of the provisions contained in section 10(4) of the 2013 Act.
9. The provision contained in section 10 of the 2013 Act is being extracted herein below for ready reference:
10. Conciliation .(1) The Internal Committee or, as the case may be, the Local Committee, may, before initiating an inquiry under section 11 and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation:
Provided that no monetary settlement shall be made as a basis of conciliation.
(2) Where settlement has been arrived at under sub-section (1), the Internal Committee or the Local Committee, as the case may be, shall record the settlement so arrived and forward the same to the employer or the District Officer to take action as specified in the recommendation.
(3) The Internal Committee or the Local Committee, as the case may be, shall provide the copies of the settlement as recorded under sub-section (2) to the aggrieved woman and the respondent.
(4) Where a settlement is arrived at under sub-section (1), no further inquiry shall be conducted by the Internal Committee or the Local Committee, as the case may be.
10. A bare reading of section 10(4) of the 2013 Act makes it very clear that what is barred is any further inquiry after the conciliation by the Internal Committee or the Local Committee, as the case may be, and it does not extend to the employer's independent disciplinary jurisdiction which flows from the Service Rules.
11. On the contrary, section 19 of the 2013 Act casts an obligation on the employer to ensure a safe workplace. The statutory duty cannot be negated merely because the complainant agreed to conciliate at one stage, particularly, when the ICC declined to proceed further on the objection by respondent No. 2 due to the bar under section 10(4) of the 2013 Act.
12. In our considered view, the bar under section 10(4) of the 2013 Act does not extinguish an employer's authority under the Service Rules to inquire into the misconduct of the employee.
13. The ICC proceedings do not substitute disciplinary jurisdiction unless the Service Rules so provide.
14. The 2013 Act is a minimum protective statute and does not curtail disciplinary jurisdiction, unless expressly so provided. Reading section 10(4) of the 2013 Act as a blanket bar will defeat the very purpose of ensuring safe workplaces. Thus, the part of the impugned judgment, which quashes initiation of the Departmental Proceedings against the respondent No. 1, is not sustainable in the eyes of law and is, therefore, set aside.
15. However, so far as the impugned judgment expunging the first paragraph of the ICC conclusion, namely, lack of evidence is concerned, we are of the considered opinion that the same ought not to be interfered with for the reason that the inquiry by the ICC could not be concluded because the agreement between the respondent Nos. 1 & 2 to conciliate the matter to avoid workplace tension and disturbance. The Departmental Proceedings initiated by the appellant/ employer against the respondent No. 1 being maintainable and lawful as well, it shall be resumed from the stage from where it was stopped. However, the Disciplinary Authority shall proceed with the inquiry in accordance with the Service Rules ensuring full opportunity of defence to the respondent No. 1/ charged officer.
16. All questions of facts and merits of the case are kept open to be examined by the Inquiry Officer/Disciplinary Authority, uninfluenced by any observation made in this judgment.