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Allahabad High Court · body

2025 DIGILAW 1105 (ALL)

Dev Dutt Pachauri v. State of U. P.

2025-09-08

MANISH MATHUR

body2025
JUDGMENT : MANISH MATHUR, J. 1. Heard Mr. Shireesh Kumar, learned counsel for petitioner and learned State counsel for opposite parties no.1 to 6. 1A. Supplementary affidavit filed today is taken on record. 2. Liberty is granted to petitioner to implead the complainant as opposite party no.7 during the course of day. 3. Issue notice to newly impleaded opposite party no.7. 4. Petition has been filed challenging recommendations dated 01.08.2025 submitted in terms of Section 13 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. 5. At the very outset, Mr. Sandeep Sharma, learned State Counsel has raised a preliminary objection regarding maintainability of this petition in view of the fact that recommendations submitted in terms of Section 13 of the Act of 2013 are appealable and therefore, petitioner has an alternative and equally efficacious remedy for filing appeal before the Authority concerned in terms of Section 18 of the Act read with Rule 11 of the Rules framed thereunder. 6. In rebuttal thereof, learned counsel for petitioner submits that Section 18 of the Act of 2013 indicates that primarily an appeal is required to be preferred to the Court or Tribunal concerned in accordance with provisions of Service Rules applicable to the said person and it is only where such Rules do not exist then an appeal is required to be preferred in such manner as may be prescribed. It is submitted that petitioner being a Government Servant, the U.P. Government Servant (Discipline and Appeal) Rules, 1999 are applicable upon him but do not indicate any Court or Tribunal as an Appellate Authority and therefore in such circumstances, the benefit of appeal would not be applicable to petitioner since the U.P. State Public Services Tribunal does not have any power of jurisdiction under the Act under which it was constituted to entertain appeals against recommendations made under Section 13 of the Act of 2013. 7. It has been submitted that in such a situation, recourse may be taken to provisions of appeal under Rule 11 of the Rules of 2013 but refer to the aspect of preferring an appeal to the Appellate Authority notified under clause (a) of Section 2 of the Industrial Employment (Standing Orders) Act, 1946. 7. It has been submitted that in such a situation, recourse may be taken to provisions of appeal under Rule 11 of the Rules of 2013 but refer to the aspect of preferring an appeal to the Appellate Authority notified under clause (a) of Section 2 of the Industrial Employment (Standing Orders) Act, 1946. Learned counsel has thereafter adverted to the aforesaid Act of 1946 to submit that the Appellate Authority under Section 2 thereof means an authority appointed by the appropriate Government in respect of Industrial Establishments under the control of Central Government or Railway Administration or in a major port, mine and for which, it is the Central Government which is the appropriate Authority and in all other cases, it is the State Government. 8. Learned counsel has also drawn attention to definition of ‘Industrial Establishment’ defined under Section 2(e) of the Act of 1946 to submit that the petitioner would not come within purview of any of the Industrial Establishments as indicated therein. He has also adverted to the notification dated 04.05.2016 issued by the Ministry of Labour and Employment, New Delhi in terms of Rule 11 of the Rules of 2013 to submit that the said notification is only with regard to Central Government Employees whereas petitioner is a State Government Employee and therefore in terms thereof, no such Rules having been notified by the State Government, the Central Government notifications would be inapplicable in the case of petitioner due to which he does not have the remedy of appeal. Learned counsel has also adverted to Section 2(o) of the Act of 2013 to submit that the definition of Workplace also does not also include the petitioner as a Government Servant. It is therefore submitted that in terms thereof, the petitioner does not have an alternative remedy of filing appeal. 9. Learned counsel in the alternative has also raised a plea that even if this Court comes to a conclusion that remedy of appeal is available to petitioner, it would not bar entertain-ability of this petition in view of the fact that recommendations impugned have been passed without jurisdiction and are therefore not in consonance with the wednesbury principle. 10. 9. Learned counsel in the alternative has also raised a plea that even if this Court comes to a conclusion that remedy of appeal is available to petitioner, it would not bar entertain-ability of this petition in view of the fact that recommendations impugned have been passed without jurisdiction and are therefore not in consonance with the wednesbury principle. 10. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record including the statutory provisions, it is evident from a bare perusal of Section 18 of the Act of 2013 that provision of appeal is available to any person aggrieved from the recommendations made under Section 13 or relevant portions of Sections 14 and 17 of the Act. The provisions of Section 18 of the Act are as follows:- “18. Appeal. —(1) Any person aggrieved from the recommendations made under sub-section (2) of section 13 or under clause (i) or clause (ii) of sub-section (3) of section 13 or sub-section (1) or sub-section (2) of section 14 or section 17 or non-implementation of such recommendations may prefer an appeal to the court or tribunal in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist then, without prejudice to provisions contained in any other law for the time being in force, the person aggrieved may prefer an appeal in such manner as may be prescribed. (2) The appeal under sub-section (1) shall be preferred within a period of ninety days of the recommendations.” 11. A perusal of the aforesaid provision therefore reveals that provision of appeal is available to any person from the recommendations made under Sections 13, 14 and 17 of the Act of 2013 to the Court or Tribunal in accordance with provisions of the Service Rule applicable upon said person. 12. Admittedly, the Rules of 1999 are applicable upon petitioner being a State Government Servant. Rule 11 of the Rules of 1999 provide for appeal to the next higher Authority from an order passed by the Disciplinary Authority. The provisions of Rule 11 of the Rules of 1999 are as follows:- “11. Appeal. (1) Except the orders passed under these rules by the Governor, the Government servant shall be entitled to appeal to the next higher authority from an order passed by the Disciplinary Authority. The provisions of Rule 11 of the Rules of 1999 are as follows:- “11. Appeal. (1) Except the orders passed under these rules by the Governor, the Government servant shall be entitled to appeal to the next higher authority from an order passed by the Disciplinary Authority. (2) The appeal shall be addressed and submitted to the appellate authority. A Government servant preferring an appeal shall do so in his own name. The appeal shall contain all material statements and arguments relied upon by the appellant. (3) The appeal shall riot contain any intemperate language. Any appeal, which contains such language may be liable to be summarily dismissed. (4) The appeal shall be preferred within 90 days from the date of communication of impugned order. An appeal preferred after the said period shall dismissed summarily.” 13. Upon conjoint examination of Section 18 of the Act of 2013 with Rule 11 of the Rules of 1999, it is thus evident that the term ‘Authority’ as mentioned in Rule 11 of the Rules of 1999 is conspicuously absent in Section 18 of the Act of 2013 which provides appeal only to a Court or Tribunal. In such circumstances, evidently the first portion of Section 18 of the Act of 2013 providing appeal to the Court or Tribunal in accordance with provisions of Service Rules would not be available to petitioner. 14. The principle of Casus omissus is now settled in a catena of decisions that words which had deliberately been omitted in the wisdom of legislature in a statute cannot be supplied by the Court in case the same is unambiguous. The said aspect has been considered by Hon'ble the Supreme Court in the case of Rohitash Kumar and Ors. vs. Om Prakash Sharma and Ors. (2013) 11 SCC 451 in the following manner:- "27. The Court has to keep in mind the fact that, while interpreting the provisions of a Statute, it can neither add, nor subtract even a single word. The legal maxim "A Verbis Legis Non Est Recedendum" means, "From the words of law, there must be no departure". A section is to be interpreted by reading all of its parts together, and it is not permissible, to omit any part thereof. The legal maxim "A Verbis Legis Non Est Recedendum" means, "From the words of law, there must be no departure". A section is to be interpreted by reading all of its parts together, and it is not permissible, to omit any part thereof. The Court cannot proceed with the assumption that the legislature, while enacting the Statute has committed a mistake; it must proceed on the footing that the legislature intended what it has said; even if there is some defect in the phraseology used by it in framing the statute, and it is not open to the court to add and amend, or by construction, make up for the deficiencies, which have been left in the Act. The Court can only iron out the creases but while doing so, it must not alter the fabric, of which an Act is woven. The Court, while interpreting statutory provisions, cannot add words to a Statute, or read words into it which are not part of it, especially when a literal reading of the same, produces an intelligible result. (Vide: Nalinakhya Bysack v. Shyam Sunder Haldar & Ors., AIR 1953 SC 148 ; Mr. Ram Ram Narain Medhi v. State of Bombay, AIR 1959 SC 459 ; M. Pentiah & Ors. v. Muddala Veeramallappa & Ors., AIR 1961 SC 1107 ; The Balasinor Nagrik Co-operative Bank Ltd. v. Babubhai Shankerlal Pandya & Ors., AIR 1987 SC 849 and Dadi Jagannadham v. Jammulu Ramulu & Ors., (2001) 7 SCC 71 ). 28. The Statute is not to be construed in light of certain notions that the legislature might have had in mind, or what the legislature is expected to have said, or what the legislature might have done, or what the duty of the legislature to have said or done was. The Courts have to administer the law as they find it, and it is not permissible for the Court to twist the clear language of the enactment, in order to avoid any real, or imaginary hardship which such literal interpretation may cause." 15. In such circumstances, we may find recourse to the second portion of Section 18 of the Act of 2013 which provides appeal to an aggrieved person in such manner as may be prescribed. In such circumstances, we may find recourse to the second portion of Section 18 of the Act of 2013 which provides appeal to an aggrieved person in such manner as may be prescribed. For the said purpose we are required to examine provisions of the Rules of 2013 framed under the Act of 2013 with particular emphasis on Rule 11 thereof which is as follows: “11. Appeal.- Subject to the provisions of section 18, any person aggrieved from the recommendations made under sub-section (2) of section 13 or under clauses (i) or clause (ii) of sub-section (3) of section 13 or sub-section (1) or sub section (2) of section 14 or section 17 or non-implementation of such recommendation may prefer an appeal to the appellate authority notified under clause (a) of section 2 of the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946).” 16. Upon examination thereof, it is evident that appeal against recommendations in terms of specific provisions of Sections 13, 14 or 17 of the Act of 2013 is provided to the Appellate Authority notified under clause (a) of Section 2 of the Industrial Employment (Standing Orders) Act, 1946. Section 2 of the Act of 1946 specifically indicates the Appellate Authority to be an authority appointed by the Appropriate Government by notification in the Official Gazette to exercise in such area as may be specified in the notification the functions of Appellate Authority under the Act. The term ‘Appropriate Government’ has thereafter been defined in clause (b) of Section 2 of the Act of 1946 in the following manner:- S. 2. The term ‘Appropriate Government’ has thereafter been defined in clause (b) of Section 2 of the Act of 1946 in the following manner:- S. 2. Interpretation .- In this Act, unless there is anything repugnant in the subject of context- (b) "appropriate Government" means in respect of industrial establishments under the control of the Central Government or a 9 [Railway administration] or in a major Port, mine or oil field, the Central Government, and in all other in all other cases the State Government: 10[Provided that where question arises as to whether any industrial establishment is under the control of the Central industrial establishment is under the control of the Central Government that Government may, either on a reference made to it by the employer or the workman or a trade union or other representative body of the workmen, or on its own motion and after giving the parties an opportunity of being heard, decide the question and such decision shall be final and binding on the parties:]" 17. It is thus evident that in terms of the Act of 1946, the appropriate Government with regard to State Government Employees would be the State Government. 18. It is admitted between the parties that till date no notification has been issued by the State Government in terms of Section 2 of the Act of 1946. 19. However a perusal of the provisions of Act of 2013 also indicates the definition of term ‘Appropriate Government’ under Section 2(b) as in relation to workplace which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the Central Government or by the State Government in relation to any workplace not covered under clause (i) and falling within the territory, the State Government. The provision of Section 2 (b) is as follows:- “2. (b) “appropriate Government” means— (i) in relation to a workplace which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly— (A) by the Central Government or the Union territory administration, the Central Government; (B) by the State Government, the State Government.” 20. In view thereof, it is evident that with regard to State Government Employees, it is only the State Government which is empowered to issue any notification prescribing Appellate Authorities in terms of the Act of 2013. 21. In view thereof, it is evident that with regard to State Government Employees, it is only the State Government which is empowered to issue any notification prescribing Appellate Authorities in terms of the Act of 2013. 21. However, it is the provisions of Section 29 of the Act of 2013 which strike a discordant note and clearly indicates only the Central Government authorized to make Rules for carrying out provisions of the Act. The said Section 29 of the Act of 2013 does not empower the State Government to frame any Rules under the Act for determination of Appellate Authorities. It is in exercise of powers conferred under Section 29 of the Act of 2013 that the Central Government has framed the Rules of 2013 indicating in Rule 11 the aspect of Appeal under the Act of 1946. 22. Upon examination of all the aforesaid statutory provisions and particularly in view of Section 29 of the Act of 2013, it thus emerges that in terms of Section 29 of the Act of 2013 power has been conferred only upon the Central Government to frame Rules for carrying out provisions of the Act. 23. Rule 11 of the Rules of 2013 referring to the Appellate Authority only in terms of Act of 1946 therefore assumes significance. It is in terms of the Act of 1946 that the notification dated 04.05.2016 has been issued by the Ministry of Labour and Employment, New Delhi, which is as follows: “New Delhi, the 4th May, 2016 S.O. 1632(E). In exercise of the powers conferred by clause (a) of section 2 of the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946), and in supersession of the notification of the Government of India in the Ministry of Labour and Employment number S.O. 1062 dated the 15 March, 1990, the Central Government hereby appoints the following officers to exercise the functions of appellate authority under the said Act in respect of the industrial establishment under the control of Central Government or a Railways administration or a major port, mine or oil-field situated anywhere in India, namely:- (1) Chief Labour Commissioner (Central): (2) Additional Chief Labour Commissioner (Central); (3) All Deputy Chief Labour Commissioner (Central). [No.S-12011/3/2014-IR(PL)] G. VENUGOPAL REDDY. Jt. Secy." 24. [No.S-12011/3/2014-IR(PL)] G. VENUGOPAL REDDY. Jt. Secy." 24. A perusal of the aforesaid provisions therefore clearly indicates the aspect that under Section 29 of the Act of 2013, it is only the Central Government which is empowered to frame Rules under the Act of 2013 and in terms thereof the Rules of 2013 have been framed clearly indicating the Appellate Authority in Rule 11 thereof. 25. It is quite clear that Rule 11 of the Rules of 2013 adverting to the Act of 1946 would therefore come within purview of the doctrine of legislation by reference. The aforesaid doctrine has been enunciated and explained by Hon’ble the Supreme Court in the cases of Insolvency and Bankruptcy Board of India vs. Satyanarayan Bankatlal Malu & Ors. (2024) 6 SCC 508 and Girnar Traders vs. State of Maharashtra & Ors . (2011) 3 SCC 1 . The relevant portion of which are as follows:- “31. It could thus be seen that the effect of incorporation means the bodily lifting of the provisions of one enactment and making it part of another so much so that the repeal of the former leaves the latter wholly untouched. However, in the case of a reference or a citation of the provisions of one enactment into another without incorporation, the amendment or repeal of the provisions of the said Act referred to in a subsequent Act will also bear the effect of the amendment or repeal of the said provisions. 87. However, since this aspect was argued by the learned counsel appearing for the parties at great length, we will proceed to discuss the merit or otherwise of this contention without prejudice to the above findings and as an alternative plea. These principles have been applied by the courts for a considerable period now. When there is general reference in the Act in question to some earlier Act but there is no specific mention of the provisions of the former Act, then it is clearly considered as legislation by reference. In the case of legislation by reference, the amending laws of the former Act would normally become applicable to the later Act; but, when the provisions of an Act are specifically referred and incorporated in the later statute, then those provisions alone are applicable and the amending provisions of the former Act would not become part of the later Act. In the case of legislation by reference, the amending laws of the former Act would normally become applicable to the later Act; but, when the provisions of an Act are specifically referred and incorporated in the later statute, then those provisions alone are applicable and the amending provisions of the former Act would not become part of the later Act. This principle is generally called legislation by incorporation. General reference, ordinarily, will imply exclusion of specific reference and this is precisely the fine line of distinction between these two doctrines. Both are referential legislations, one merely by way of reference and the other by incorporation. It, normally, will depend on the language used in the later law and other relevant considerations. While the principle of legislation by incorporation has well-defined exceptions, the law enunciated as of now provides for no exceptions to the principle of legislation by reference. Furthermore, despite strict application of doctrine of incorporation, it may still not operate in certain legislations and such legislation may fall within one of the stated exceptions.” 26. Upon applicability of aforesaid judgment in the present facts and circumstances of the case, it is thus evident that where provisions of another Act have been incorporated with legislation by reference, the provisions of the Act which is referred to, become an intrinsic part of the legislation to which it is sought to be referred. In such circumstances, the provisions of the Act of 1946 particularly with regard to Appellate Authorities would be become applicable upon persons aggrieved by recommendations made under the relevant clauses of Sections 13, 14, and 17 of the Act of 2013. Therefore, the aspect of whether a person aggrieved is a Central Government Employee or State Government Employee loses importance and it is this provision of appeal indicated under Act of 1946 which will prevail. 27. A perusal of various Sections of the Act of 2013 prima facie indicate certain contradiction with regard to Rules being framed by appropriate Government. However for the purposes of this particular dispute, Section 29 of the Act of 2013 clearly empowers only the Central Government to issue Rules in terms of the Act and therefore notification of the Rules by the Central Government in terms of Section 29 of the Act of 2013 will be equally applicable upon State Government Employee as well. 28. However for the purposes of this particular dispute, Section 29 of the Act of 2013 clearly empowers only the Central Government to issue Rules in terms of the Act and therefore notification of the Rules by the Central Government in terms of Section 29 of the Act of 2013 will be equally applicable upon State Government Employee as well. 28. In such circumstances, it is held that any person aggrieved by recommendations made under relevant portions of Sections 13, 14 or 17 of the Act of 2013 would have the remedy of appeal to the authorities indicated in terms of notification dated 04.05.2016, as amended from time to time in terms of the Act of 1946. 29. Preliminary objection with regard to availability of appeal therefore are upheld. 30. The next aspect which requires consideration is whether in such circumstances where appeal is maintainable against recommendations under provisions of Sections 13, 14 and 17 of the Act of 2013, the present petition would be entertain-able or is required to be relegated to the appellate jurisdiction. 31. Learned counsel for petitioner has specifically submitted that despite availability of remedy of appeal, the present petition would be maintainable since the recommendations and even the initiation of proceedings in terms of complaint are without jurisdiction. 32. The said aspect has already been settled in a catena of judgments particularly in case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Ors. (1998) 8 SCC 1 in which it has already been held that notwithstanding any forum of appeal, a writ petition would be entertain-able in case orders under challenge are without jurisdiction or have been passed without adhering the principles of natural justice, amongst other aspects. 33. Learned counsel for petitioner to substantiate his submissions has indicated provisions of Section 2(n) of the Act of 2013 to submit that the term 'Sexual Harassment' indicates five aspects indicated in the said provisions. 33. Learned counsel for petitioner to substantiate his submissions has indicated provisions of Section 2(n) of the Act of 2013 to submit that the term 'Sexual Harassment' indicates five aspects indicated in the said provisions. He has also adverted to Section 9 of the said Act of 2013 to submit that in terms thereof, the complaint to be entertain-able under the Act of 2013 is required to comply not only the provisions of Section 2(n) but also with regard to Section 9 of the Act of 2013 which prescribes a limitation period of three months from the date of incident or in case of a series incidents, within a period of 3 months from the date of last incident. It is therefore submitted that the complaint was made on 12.03.2025 but pertains to an incident which took place on 03.04.2024. It is submitted that since the complaint adverts to a single incident and not to a series of incidents, the complaint was not entertain-able after three months from the date of such incident. He has also adverted to the contents of complaint dated 12.03.2025 to submit that none of allegations made thereunder are referable to Section 2(n) of the Act of 2013. In view thereof, it is submitted that the very initiation of proceedings and recommendations thereafter are without jurisdiction. 34. He has also adverted to the fact that he never received any show cause notice nor was he provided an opportunity to participate in the proceedings which started and culminated in just one day on 01.08.2025 with statements of witnesses also being recorded on the same day with the inquiry report also being submitted on the same day itself. It is therefore submitted that no opportunity for providing defence to petitioner was ever given. 35. Learned State Counsel has been provided written instructions dated 01.08.2025, a copy of which is taken on record and as per which the recommendations dated 01.08.2025 have been brought on record. It is submitted by learned State Counsel that a notice was given to petitioner vide letter no.1102 dated 28.07.2025 but was not availed of by the petitioner himself who refused either to submit a reply or to participate in the proceedings. He has placed reliance on judgment rendered in the case of Vishwesh Dayal Shrivastava vs. Union of India & Ors. He has placed reliance on judgment rendered in the case of Vishwesh Dayal Shrivastava vs. Union of India & Ors. MANU/UP/2979/2015 : 2016 (8) ADJ 597 to submit that it has been held that in case the complainant could not file the complaint within the prescribed time limit due to circumstances beyond her control, the complaint would be entertain-able in such circumstances. 36. Prima facie, from submissions advanced by learned counsel for parties and perusal of material on record, it appears that the Local Committee in its report has not adverted to the aspect of complaint being beyond the limitation period as prescribed under Section 9 of Act of 2013. The aspect of whether the complaint would come within view of Section 2(n) of the Act of 2013 has also not been adverted to by Local Committee in its recommendations. Another aspect which will require consideration is whether the entire process of inquiry was completed within one day due to which ample opportunity of defence was not provided to petitioner. 37. In view of aforesaid facts and circumstances, opposite parties are granted three weeks’ time to file a counter affidavit. 38. List this case on 10.10.2025 alongwith service report. 39. Till next date of listing, operation of impugned recommendations dated 01.08.2025 shall remain stayed.