Case Details:                WP(C) No.1810/2021

Court:                           Hon'ble Jammu & Kashmir and Ladakh High Court

Ratio:                           “A person who participates in the enquiry proceedings or selection without any demur and later on challenges the constitution of the enquiry committee or the selection committee, as the case may be, after finding that the result of the enquiry/selection has gone against him, is not entitled to do so.”

Judgment date:            December 23, 2022

Act/Law:                       Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”)

Factual Matrix:

  • The petitioner had challenged the enquiry report as well as the order whereby the Complaints Committee (“CC”) under the POSH Act was constituted. The petitioner had inter alia contended that the constitution of the CC was not in accordance with the provisions of the POSH Act in view of the absence of an external member.
  • The enquiry report rendered by the CC was also challenged on the grounds of bias as the petitioner was not provided a copy of the reply submitted by the respondent which amounted to violation of the principles of natural justice.
  • One of the arguments raised by the respondents was that since the petitioner had participated in the CC enquiry proceedings without protest, the petitioner could not challenge the CC's constitution and had acquiesced in the enquiry proceedings.

Court's Observation and Judgement:

The Hon'ble High Court has made the following observations:

  • There was nothing on record to even remotely suggest that the petitioner had, at any point of time, expressed resentment, protest or demur to her participation before the CC constituted pursuant to the impugned government order.
  • The petitioner participated in the proceedings on a number of dates and had pursued her case vigorously right up to the conclusion of the enquiry without any demur.
  • The petitioner did not claim that she had lodged any protest at any point of time as regards the alleged defective constitution of the CC.
  • Each of the petitioner's allegation had been considered by the CC in the light of the material produced before it and finding on each and every allegation levelled by the petitioner has been given in the CC's report. The enquiry report further highlighted the number of opportunities granted to the petitioner to produce evidence/witnesses and substantiate/support her allegations. Furthermore, there was no record of the petitioner requesting a copy of the respondent's response.
  • Thus, the Hon'ble High Court held that there is no violation of principles of natural justice or any other procedure by the CC and the Court could interfere with the enquiry proceeding findings on very limited grounds that the principles of natural justice had not been observed in breach or that the findings are based on no evidence.

Referring to various pronouncements of the Hon'ble Supreme Court and the Hon'ble Bombay High Court, the Court held that “a person who participates in the enquiry proceedings or selection without any demur and later on challenges the constitution of the enquiry committee or the selection committee, as the case may be, after finding that the result of the enquiry/selection has gone against him, is not entitled to do so.”. It was further held that the petitioner had acquiesced in the CC's constitution as she had at no stage, made any protest regarding the constitution or functioning of the CC.

In nutshell, when a person takes a chance and participates in a proceeding without protest, thereafter she cannot, because the result is unpalatable, turn around to contend that the process was unfair, or the enquiry/selection committee was not properly constituted.

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