BiJoy K. C. v. The Chairman, Fluid Control Research Institute Governing Council (Joint Secretary, Department of Heavy Industries) & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 31[ST] DAY OF MAY 2022 / 10TH JYAISHTA, 1944** ## **WP(C) NO. 1269 OF 2022** ## **PETITIONER** BIJOY K. C. AGED 48 YEARS S/O. K.C.SREEDHARAN (LATE), EXECUTIVE ASSISTANT (UNDER SUSPENSION), FLUID CONTROL RESEARCH INSTITUTE (F.C.R.I) KANJIKKODE WEST, PALAKKAD-678 623, RESIDING TYPE III STAFF QUARTERS, FCRI CAMPUS, KANJIKKODE, PALAKKAD-676 623 BY ADV U.BALAGANGADHARAN ## **RESPONDENTS** - 1 THE CHAIRMAN, FCRI GOVERNING COUNCIL (JOINT SECRETARY), DEPARTMENT OF HEAVY INDUSTRIES), UDYOG BHAVAN, NEW DELHI-110 011 - 2 FLUID CONTROL RESEARCH INSTITUTE, REPRESENTED BY ITS DIRECTOR, KANJIKODE, PALAKKAD678 011 - 3 THE DEPUTY DIRECTOR (DIRECTOR-IN -CHARGE), FLUID CONTROL RESEARCH INSTITUTE, KANJIKKODE , PALAKKAD-678 623, - 4 THE DIRECTOR, FLUID CONTROL RESEARCH INSTITUTE, KANJIKKODE ,PALAKKAD-678 623, - 5 UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HEAVY INDUSTRIES) UDYOG BHAVAN, NEW DELHI-100 011 - 6 THE PRESIDING OFFICER, INTERNAL COMMITTEE (FORMER ICC), UNDER POSH ACT, FLUID CONTROL RESEARCH INSTITUTE, KANJIKODE ,PALAKKAD-678 623, - 7 ADDL.R7 : JYOTHI.C.R MULTI TASKING STAFF GRADE II, FLUID CONTROL RESEARCH INSTITUTE, KANJIKKODE WEST, PALAKKAD - WP(C).1269/2022 2 678623 ADDL. R7 IS IMPLEADED AS PER ORDER DATED 21-02-2022 IN I.A 1/2022 BY Jaishankar V.Nair M.GOPIKRISHNAN NAMBIAR NICHU WILLINGTON K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM RAJA KANNAN SRI.MANU S. ASG THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).1269/2022 3 ## JUDGMENT ## Dated : 31[st] May, 2022 ## 1. This writ petition is filed with the following prayers : (1). To call for the records leading to Ext.P9 and set aside the same as one legally and factually unsustainable by issuing writ in the nature of Certiorari. (2). Issue writ in the nature of mandamus commanding the 3[rd] and 4[th] respondent to drop all further proceedings pursuant to Ext.P9 against the petitioner. (3). Issue writ in the nature of mandamus commanding the 6[th] respondent to refrain from acting in furtherance to Ext.P9 order. (4). Declare that petitioner is not liable to be proceeded again by the 6[th] respondent pursuant to Ext.P9 order, over reaching Ext.P4 report and further declare that the complaint against the petitioner stands finalised and concluded as per Ext.P4 report in the eye of law. 2. Heard the learned counsel for the petitioner and the learned counsel appearing for respondents 1 to 5 and 7. 3. Sri.S.Manu, the learned ASG appears for respondents 1 and WP(C).1269/2022 4 5. Sri.Gopikrishnan Nambiar appears for respondents 2 to 4. Though notice has been issued to the 6[th] respondent, there is no appearance. 7[Th] respondent appears through counsel. 4. It is submitted by the learned counsel for the petitioner that the petitioner was an employee of the 2[nd] respondent against whom an allegation of sexual harassment had been raised by the 7[th] respondent. It is submitted that Ext.P1 complaint was submitted on 28.7.2021. At the time when Ext.P1 complaint was made, an Internal Complaints Committee was in force in the 2[nd] respondent, as constituted by Ext.P2 proceedings dated 1.6.2019. It is submitted that the Committee was reconstituted as per Ext.P3 proceedings dated 2.8.2021. On issuing notice to the petitioner on Ext.P1 complaint, the Committee conducted hearings on 11.8.2021, 16.8.2021 and 11.10.2021 and had submitted Ext.P4 report finding that the allegations against the petitioner do not constitute sexual harassment under the Sexual Harassment of Women at Workplace (Prevention) Prohibition And Redressal Act, 2013 (in short the Act). It is submitted that there was a further observation in Ext.P4 report that, minor penalty proceedings had to be initiated against the petitioner, though there is no offence under the Act. It is submitted that the petitioner had WP(C).1269/2022 5 objected to the proposed minor penalty proceedings by preferring Ext.P4(a) representation before the 3[rd] respondent on 8.11.2021. It is submitted that Ext.P5 and P6 proceedings had been issued which had been challenged before this Court and are pending consideration in W.P.(C).22578/2021. However, in the meanwhile, it is contended that Internal Complaints Committee under Section 4 of the Act was reconstituted on 24.12.2021 by Ext.P8. Thereafter, Ext.P9 proceedings had been issued directing enquiry into Ext.P1 complaint afresh. 5. The learned counsel for the petitioner contends that the reconstitution of the Committee by Ext.P8 itself is invalid. It is contended that one of the members of the Committee is a person who is found guilty in departmental proceedings and therefore the Committee was improperly constituted. Even otherwise, it is contended that since the allegation raised against the petitioner in Ext.P1 complaint had been considered by a duly constituted Internal Complaints Committee and Ext.P4 report had been submitted, it is not open to the respondents to issue proceedings in the nature of Ext.P9 for re-enquiry into the very same complaint. The learned counsel for the petitioner contends that Ext.P9 WP(C).1269/2022 6 proceedings are vitiated by _mala fides._ It is further contended that even if in case of any deficiency in the constitution of the Committee by Ext.P3, Ext.P4 order would be saved by the de facto doctrine and would therefore, be legally binding and the matter cannot be reconsidered. Learned counsel also would rely on the provisions of Section 4 of the Act to contend that there is absolutely no disqualification for a person continuing as a member of the Committee for two consecutive terms in the Act or the Rules made there under and that the only provision is that the Presiding Officer and member of the Internal Committee shall hold office for such period, not exceeding three years, from the date of their nomination. It is contended that since the Committee has been reconstituted on 2.8.2021 by Ext.P3 proceedings, it has to be deemed that there is a fresh nomination of the Presiding Officer and all the members of the said Committee and therefore, they can legally hold office for a period of three years thereafter. It is therefore contended that Ext.P9 is illegal and invalid. 6. A detailed counter affidavit has been placed on record by respondents 2 to 4. It is contended therein that the ICC which considered Ext.P1 complaint was not properly constituted, and Ext.P4 report and the findings therein cannot be WP(C).1269/2022 7 considered to be legal and valid. It is submitted that Ext.P2 and P3 produced by the petitioner are only orders of reconstitution inducting new members in the place of previous members who had retired or had been transferred. It is therefore contended that the only actual reconstitution of the committee in terms of Section 4 is by Ext.P8 proceedings and that as such, the contention that the Committee stood reconstituted by Ext.P3 is fallacious. It is further contended that since the Committee was not properly constituted, Ext.P4 report also was not one properly generated and that the directions in Ext.P9 are therefore perfectly legal and valid. 7. Learned counsel also would rely on the decision of the Apex Court in **Central Bank Of India v. Bernard (1991 (1) SCC 319)** to contend that the de facto doctrine would not apply to disciplinary proceedings or in the case of appointment of enquiry officer by an employer. It is contended that the de facto doctrine envisages only the acts performed by officers within the scope of their authorities and such acts are recorded as binding as they were performed _de jure_ only with regard to acts or orders affecting the public and not in the case of an enquiry as in the present case. 8. The learned counsel appearing for the 7[th] respondent WP(C).1269/2022 8 contended that even going by Ext.P9 itself it is clear that appeal had been preferred by the 2[nd] respondent as against Ext.P4 which has been closed without considering the merits of the matter and that is liable to be reconsidered, even if Ext.P9 is found to be illegal. 9. I have considered the contentions advanced. Section 4 of the Act specifically provides for constitution of an Internal Complaints Committee. The employer is to constitute such a committee by an order in writing. The constitution of the Committee is also provided for in sub-section (2) of Section 4 of the Act. 10. Sub-section (3) of section 4 reads as follows :- - (3) The Presiding Officer and every Member of the Internal Committee shall hold office for such period, not exceeding three years, from the date of their nomination as may be specified by the employer. 11. The de facto doctrine envisages that acts performed de facto by officers or authorities within the scope of their assumed official authority are to be regarded as binding as if they were performed by the officers _de jure_ . True such a plea may not be available as a defence where an action is directly WP(C).1269/2022 9 challenged on the ground of lack of jurisdiction or authority. However, the question of application of the doctrine may not arise in the instant case. 12. The only question to be decided is whether the reconstitution of the Committee by Exts.P2 and P3 orders would amount to a further constitution of the Internal Complaints Committees which would enable the members to continue for three years as provided in sub-section (3) of Section 4. Exts.P2 and P3 do not specifically refer to Section 4 of the Act. However, the subject of the office orders provide for the “re-constitution of the Internal Complaints Committee”. In both the instances, the orders say that the committee members will assume their office on reconstitution. The only conclusion that can be drawn from a reading of Exts.P2 and P3 orders are that, though specific reference to Section 4 is absent in the orders, the said orders are orders reconstituting the Internal Complaints Committee of the 2[nd] respondent. If that be so, since the Committee stands reconstituted by Ext.P3 order dated 2.8.2021, and the members of the committee have to assume their office immediately pursuant thereto, I am of the opinion that the said reconstitution amounts to a nomination of the members WP(C).1269/2022 10 of the committee. Therefore, the contention that they could not hold office since the period of three years from the initial constitution of the committee from 23.11.2017 and their terms had expired by 22.11.2020, cannot be accepted. This is more so in view of the fact that there is no embargo on the same members being nominated to the Committee consecutively for two or more terms. In the said factual scenario, the applicability of the de facto doctrine does not require a consideration in the instant case. Since the committee reconstituted as per Exts.P2 and P3 had functioned as the Internal Complaints Committee, and had considered the complaint and Ext.P4 report was generated, I am of the opinion that an order in the nature of Ext.P9 permitting a re-enquiry into the complaints, is completely without authority of law. In the above view of the matter, Ext.P9 proceedings are set aside. The Writ Petition is ordered accordingly. ANU SIVARAMAN, Judge Mrcs WP(C).1269/2022 11 ## **APPENDIX** EXHIBITS Exhibit P1 A TRUE COPY OF COMPLAINT FILED BY SMT.JYOTHI AGAINST THE PETITIONER BEFORE THE 6TH RESPONDENT ON 28.7.2021 Exhibit P2 A TRUE COPY OF OFFICE ORDER DATED 1.6.2019 ISSUED BY THE FORMER DIRECTOR OF F.C.R.I - Exhibit P3 A TRUE COPY OF ORDER DATED 2.8.2021 ISSUED BY THE DIRECTOR IN CHARGE (3RD RESPONDENT ) REGARDING RECONSTITUTION - Exhibit P4 A TRUE COPY OF ENQUIRY REPORT DATED 11.10.2021 OF THE INTERNAL COMMITTEE - Exhibit P4A A TRUE COPY OF OBJECTION LETTER FILED BY THE PETITIONER DATED 8.11.2021 BEFORE THE THIRD RESPONDENT - Exhibit P5 A TRUE COPY OF ORDER SUSPENDING THE PETITIONER DATED 11.10.2021 ISSUED BY THE THIRD RESPONDENT - Exhibit P6 A TRUE COPY OF MEMO OF CHARGES ISSUED TO THE PETITIONER DATED 11.10.2021 BY THE THIRD RESPONDENT - Exhibit P7 A TRUE COPY OF INTERIM ORDER OF STAY GRANTED BY THIS HON'BLE COURT DATED 22.10.2021 IN WPC 22578/2021 - Exhibit P8 A TRUE COPY OF OFFICE ORDER DATED 24.12.2021 ISSUED BY THE THIRD RESPONDENT - Exhibit P9 A TRUE COPY OF OFFICE ORDER DATED 6.1.2022 ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER