Mukesh Khampariya vs. State of Madhya Pradesh and Ors., (Writ Petition No. 21852 of 2018) was decided on October 5, 2023. The Court ordered that under Section 9 of the POSH Act, the Internal Committee must record the reasons in writing to extend the time limit of three months for filing of a complaint. Further, that there exists no provision of preferring appeal under the Act of 2013 to a departmental authority. The Court also observed that no matter how strong the suspicion, it cannot replace the need for actual evidence.
The Petitioner (Original Respondent) worked as an SHO in Gadarwara Police Station, Narsinghpur District. He alleges that the Respondent No. 7 (the Original Complainant) (henceforth “Complainant”) was posted as a Sub-Inspector. He was supervising the work and duties of the Complainant and since she committed dereliction of duty on more than one occasion, certain orders taking coercive action were passed. The Complainant then brought a frivolous complaint, dated 16.03.2017, alleging sexual harassment against the Petitioner. Pursuant to which an Internal Complaints Committee (ICC) was constituted consisting of five members and inquiry was conducted, recording witness statements and the report, dated 26.05.2017, and it concluded that the allegations were not established.
The Complainant filed an appeal against the ICC Report dated 24.05.2017 before the Police Headquarter. On 25.12.2017, the departmental authority came to a hold as the allegation was not established. Then the Police Headquarter on 25.06.2018 ordered another inquiry by ADGP (Accounts). The said authority submitted the report dated 25.07.2018 and found the Petitioner guilty.
Hence, the petition under Article 226 was filed to assail the order dated 25.06.2018 and the inquiry report dated 25.07.2018 that found him guilty.
Issue 1: Whether the complaint is barred by law due to delay in filing?
The alleged incident of sexual harassment had taken place on 12.10.2016 and the complaint was preferred on 16.03.2017 thus, as per Section 9 of the POSH Act, there was no conscious decision taken by any authority to condone the delay, the complaint itself was not entertainable.
The Court noted that the plain reading of Section 9 makes it clear that the complaint can be made in writing within three months from the date of the incident. In this case, the incident took place on 12.10.2016 and the complaint was filed on 16.03.2017.
The proviso provides that the IC/LC can record reasons in writing and extend the time limit for another three months, but no such recorded reason is brought to the notice of the Court on the basis of which the limitation period was extended. Thus, the complaint was barred by time.
Issue 2: Whether there is an enabling provision for the Police Headquarter to direct another inquiry by a departmental authority?
Under S. 18, the appeal could have been preferred against the report dated 26.05.2017 to the Tribunal/Court as per the Service Rules. In Ramesh Pal vs. Union of India (2014(2) MPLJ 500), this Court observed that the appropriate remedy is to approach the Tribunal/Court as per service matters.
The Police Headquarter by communication dated 25.06.2018 direct ADGP (Accounts) to conduct another inquiry. The said authority submitted the report dated 25.07.2018. There exists no enabling provision under the Act to conduct any further inquiry by a departmental authority thus, the inquiry report is bad in law.
The Court noted that the complaint was considered by the ICC who held in the report dated 26.05.2017 that the allegation was not established. The Complainant preferred an appeal which was decided by order dated 25.12.2017 and the authority came to a hold for want of sufficient evidence. The Police Headquarter directed another inquiry and passed an order dated 25.06.2018 which found the Petitioner guilty.
The Court noted that the counsel for State and the Complainant could not point any source of this power of the Police Headquarter to direct another inquiry. It highlighted that in Ramesh Pal (supra) “the report of the IC/LC is a ‘service matter’ and in that event, anybody aggrieved by the said report can approach the Tribunal/Court. Thus, there exists no provision of preferring appeal under the Act to a departmental authority. In absence of showing any enabling provision, this Court is unable to countenance the order dated 25.06.2018 of the Police Headquarter”.
After relying on various precedents, the Court stated that “it is trite that if a statute, prescribes a thing to be done in a particular manner, it has to be done in the same manner and other methods are forbidden.”
Both the impugned orders cannot sustain judicial scrutiny apart from the mentioned operative part.
Issue 3: Whether the Petitioner is guilty of sexual harassment?
The inquiry report is based on no evidence and merely on guess work of the inquiring authority.
The Court observed that on bare perusal of the findings there was no evidence available against the petitioner. Merely because the Complainant preferred repeated complaints, the Petitioner was held guilty. Assuming that the Inquiry Officer had the authority to conduct the inquiry and report dated 25.07.2018, the finding is based on surmises and conjecture and no evidence on record. The Court while relying on Union of India vs. H.C. Goel (AIR 1964 SC 364), held that “suspicion, however strong it may be, cannot take the place of proof”. Thus, the inquiry report is liable to be set aside.
By Lakshita Bhati