Gujarat High Court
Ashima Sanjeev Minocha vs Gujarat Co-Operative Milk Marketing … on 16 April, 2026
NEUTRAL CITATION
C/SCA/3285/2026 JUDGMENT DATED: 16/04/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3285 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
================================================================
Approved for Reporting Yes No
Yes
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ASHIMA SANJEEV MINOCHA
Versus
GUJARAT CO-OPERATIVE MILK MARKETING FEDERATION LIMITED &
ANR.
================================================================
Appearance:
IG JOSHI(8726) for the Petitioner(s) No. 1
MR KEYUR GANDHI WITH MR NIRAV JOSHI WITH MR NISARG DESAI
WITH MS PRAVALIKHA BATTHINI FOR GANDHI LAW
ASSOCIATES(12275) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 16/04/2026
JUDGMENT
1. Rule returnable forthwith. Learned counsel Mr. Keyur Gandhi,
appearing on behalf of Gandhi Law Associates, waives service of
notice of Rule for and on behalf of the respondents.
2. With the consent of the learned counsel appearing for the
respective parties, the petition has been taken up for final hearing
today.
3. By way of present petition under Article 226 of the Constitution
of India read with the provisions of Sexual Harassment of Women at
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Workplace (Prevention, Prohibition and Redressal) Act, 2013
(hereinafter be referred to as “the POSH Act”), petitioner has prayed
for the following reliefs :
“A. This Hon’ble Court may be pleased to issue a writ of certiorari, order or
direction in the nature of certiorari or any other writ, order or direction
quashing and setting aside the Final Report dated 25.09.2025 (Annexure U)
issued by Respondent No. 2 – Internal Complaints Committee; andB. This Hon’ble Court may be pleased to issue a writ of mandamus, order or
direction in the nature of mandamus or any other writ, order or direction
directing Respondent No. 1 to comply with the order dated 19.01.2026
(Annexure V) passed by the State Human Rights Commission and constitute
a fresh, neutral, and independent Internal Complaints Committee excluding
members subordinate to Respondent No. 2, and direct a de novo inquiry
into the Petitioner’s complaint under the supervision of a retired judicial
officer or such independent authority as this Hon’ble Court deems fit;
BB. Pending hearing and disposal of the petition, this Hon’ble Court may be
pleased to direct the Respondents to forward the Final Report dated
25.09.2025 to the Superintendent of Police, Anand for inquiring into the
observations made at Para 22 of the Final Report by Respondent No. 2, vis-
a-vis, forcefully taking the phone from Petitioner’s hand and further
consider the case of the Petitioner for compensation as deemed appropriate
by this Hon’ble Court;
C. For costs; and
D. Such other and further reliefs as may be considered fit and expedient in
the facts of the present case be granted.”
4. Brief facts giving rise to the present petition are that, the
petitioner completed her Bachelor of Commerce in the year 2016 and
thereafter obtained a Master of Business Administration in Rural
Management from the Institute of Rural Management, Anand in the
year 2018. That, upon successfully clearing the recruitment process
conducted through her college, the petitioner appeared for and
cleared the interview process and was appointed as Senior Executive
(Sales) on 18.04.2018 with respondent No. 1 and thereafter, upon
successful completion of her probationary period with respondent
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Society, her services were duly confirmed. That, in recognition of her
performance and services, the petitioner was promoted to the post of
Assistant Manager (Marketing) on 29.10.2021 and had been
discharging her duties as an Assistant Manager with respondent No. 1
since then without any complaints from the management.
4.1 It is the case of the petitioner that, on 28.05.2025, the
Petitioner was subjected to physical and verbal assault by one Mr.
Jayen Mehta and Ms. Shefali Vijaywargiya at around 07:30 pm. That,
both Mr. Mehta and Ms. Vijaywargiya forcibly snatched the petitioner’s
mobile phone from her hand and confiscated the same and therefore,
the petitioner submitted a written complaint addressed to the
Chairman, the Vice Chairman, the Chief General Manager and the
Head of the Women Grievance Cell of respondent No. 1 on 29.05.2025
at 01:30 am. That, subsequent to filing of the aforesaid complaint, the
petitioner’s official email account and employee portal user ID were
blocked, thereby disabling her access to the same. That, upon
experiencing dizziness and an episode of vomiting arising out of the
injuries sustained in the aforesaid incident, the petitioner contacted a
friend who took her to the hospital for medical examination. That,
upon examination, the attending doctor advised her to lodge a
criminal complaint in view of the visible bruises on her arms, however,
owing to apprehension of adverse consequences from the private
respondents, the petitioner expressed her unwillingness to initiate
criminal proceedings at that time. That, in absence of such
willingness, the doctor declined to record the bruise marks in the
medical certificate and consequently, no criminal complaint was
lodged at the relevant time.
4.2 It is the case of the petitioner that, the petitioner received a
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summons dated 29.05.2025 at about 1:45 p.m., calling upon her to
remain present before the Local Crime Branch Police Station, Anand
(hereinafter referred to as the “LCB”). That, upon perusal of the
summons, the petitioner came to know that the same had been
issued pursuant to a purported complaint lodged by Mr. Jayen Mehta,
of which she had no prior knowledge. That parallelly, the petitioner
reduced into writing her detailed account of the incident that occurred
at the Head Office and forwarded the same to the Local Crime Branch,
Anand, requesting registration of an FIR on 29.05.2025. That, on
31.05.2025, the petitioner was called to the LCB for the purpose of
recording her statement in connection with her complaint, however,
upon reaching the police station, she was informed that a complaint
had been lodged against her by Mr. Jayen Mehta and was directed to
sign a pre-prepared confession statement allegedly admitting to the
offence imputed to her. That, the petitioner refused to sign the said
statement and requested a copy of the complaint, as she had no
knowledge of the nature of the allegations made against her.
Thereafter, the petitioner was made to remain seated at the police
station for approximately 6 hours and was repeatedly threatened that
she would not be permitted to leave unless she signed the purported
confession statement. That, in view of the inaction on the part of the
police authorities, she addressed a complaint dated 04.06.2025 to the
Inspector General of Police, Ahmedabad Range, seeking registration
of an FIR and initiation of a proper investigation into the incident
dated 28.05.2025. That, the petitioner also submitted a complaint
dated 04.06.2025 before the State Human Rights Commission,
bringing to its notice the acts of harassment and misconduct allegedly
committed by the officials of the LCB, Anand.
4.3 That, on 11.06.2025, the petitioner addressed a letter to the
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Human Resource Department, with copies marked to the Head of the
Internal Complaints Committee/POSH Committee (hereinafter referred
to as the “ICC/POSH Committee”), Chief General Manager, the
Chairman, the District Magistrate and the District Collector,
requesting the constitution of a Committee under the provisions of
the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 (hereinafter referred to as the
“POSH Act”) to inquire into her complaint against Mr. Jayen Mehta and
Ms. Shefali Vijaywargiya. That, simultaneously, Ms. Shefali
Vijaywargiya lodged a complaint dated 03.06.2025 (received on
09.06.2025) before the ICC against the Petitioner and certain
unknown persons alleging that, on 27.05.2025 she came to know that
certain letters / patrika were being circulated containing defamatory
allegations along with her photographs, insinuating an illicit
relationship between her and Mr. Mehta. It was alleged that such
circulation had outraged her modesty and caused serious harm to her
reputation and she caught the petitioner red-handed taking her
photographs on her mobile on 28.05.2025. That, the intimation
regarding the filing of the aforesaid complaint was conveyed to the
petitioner by the ICC vide email dated 16.07.2025.
4.4 That, on 19.06.2025, the petitioner received a letter from
respondent No. 1 directing the petitioner to collect her mobile phone
from the Administration Department, which had been allegedly
handed over to the police officials on 28.05.2025 on the allegation
that it was used as an instrument for spying. That, the said letter was
slid under the door of the company quarters of the petitioner and, as
she was not present at the quarters at the relevant time, she
remained unaware of the communication. That, upon returning to the
quarters and becoming aware of the same, the petitioner addressed a
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reply dated 26.06.2025 stating that the allegation that she had used
her mobile phone for spying was false and that she would not collect
or acknowledge receipt of the mobile phone unless the same was
handed over to her without any such imputations. That, as the
aforesaid reply was not accepted by the respondent Society, the
petitioner addressed an email dated 27.06.2025 reiterating the
contents of her earlier communication and requesting that her official
email account and employee portal user ID be unblocked forthwith.
That, on 19.07.2025, Mr. Jayen Mehta and Ms. Shefali Vijaywargiya
submitted their respective replies before the ICC in response to the
complaint filed by the petitioner. That, on 30.07.2025, the petitioner
submitted her reply before the ICC in respect of the complaint filed by
Ms. Shefali Vijaywargiya. That, on 02.09.2025, a hearing was
conducted by the ICC, wherein both the petitioner and Ms. Shefali
Vijaywargiya were specifically asked whether they were willing to
explore conciliation in terms of Section 10 of the POSH Act; however,
both parties declined the said option. During the proceedings, the
petitioner was also shown CCTV footage of the original incident dated
28.05.2025 and was subjected to inappropriate and insinuating
questions, thereby shifting blame upon her despite being the
aggrieved party. That, the petitioner requested a copy of the said
CCTV footage; however, the same was denied to her on the ground
that furnishing such footage would be contrary to Section 16 of the
POSH Act.
4.5 That, on 06.09.2025, the petitioner received a letter from
respondent No. 1, thereby providing details of the members of the
ICC, which was sent pursuant to the direction of the Human Rights
Commission and upon perusal of the same, it is evident that majority
members of the ICC were direct subordinates of respondent No. 2,
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who is the Managing Director. That, on 09.09.2025, the petitioner
submitted her written submissions in respect of the CCTV footage
shown to her during the hearing dated 02.09.2025, placing on record
material facts and clarifications which, were not duly considered.
That, in the said communication, the petitioner raised a categorical
objection regarding the constitution and functioning of the ICC, on the
ground that its members were direct subordinates of the Managing
Director, against whom her complaint had been made, thereby
vitiating the proceedings and offending the principles of natural
justice and a fair hearing. Furthermore, the petitioner had vide email
dated 26.09.2025 again raised the aforesaid objection with regard to
the members of the ICC, but to no avail. That, on 29.09.2025, the
petitioner was provided with a copy of the impugned Final Report of
the ICC dated 25.09.2025 concluding that, the complaint of the
petitioner is false and baseless and disciplinary action must be taken
against the petitioner, however, the Final Report in respect of the
complaint filed by Ms. Shefali Vijaywargiya concluded that the
allegations made therein require some consideration and the said
complaint was forwarded to the police authorities for initiating
appropriate action. That, the impugned Final Report proceeds largely
on the basis of its own interpretation of the CCTV footage and arrives
at a conclusion regarding the absence of any “sexual undertone”,
while failing to apply the statutory test of “unwelcome physical
contact” as contemplated under the Act. Moreover, the findings
recorded therein as to whether the allegations made in the respective
complaints of the petitioner and Ms. Shefali Vijaywargiya fall within
the ambit of “sexual harassment” as defined under Section 2(n) of the
POSH Act, 2013, are inconsistent and mutually contradictory. That,
the State Human Rights Commission, by order dated 19.01.2026,
directed the Chairman of respondent No. 1 to constitute a neutral
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Committee to inquire into the complaint of the petitioner. That, the
petitioner was served with a termination letter dated 11.02.2026,
whereby her services were terminated with immediate effect.
5. Being aggrieved and dissatisfied with the impugned Final
Report dated 25.09.2025, the petitioner has preferred this petition.
6. Heard Mr. I.G. Joshi, learned counsel appearing for the
petitioner and learned counsel Mr. Keyur Gandhi, assisted by Mr. Nirav
Joshi, Mr. Nisarg Desai and Ms. Pravalikha Batthini, learned counsels
appearing on behalf of Gandhi Law Associates, for the respondents.
SUBMISSIONS OF THE PETITIONER
7. Learned counsel Mr. Joshi for the petitioner has submitted that
the ICC proceedings were vitiated by a real and reasonable
apprehension of bias as all of the ICC members, except one, were
direct subordinates of the Managing Director, against whom the
complaint was filed and the composition of such a committee creates
an institutional conflict of interest and violates the principle of nemo
judex in causa sua. He has submitted that despite specific objections
raised by the petitioner and the State Human Rights Commission’s
order dated 19.01.2026 directing constitution of a neutral committee,
respondent No. 1 proceeded with the same ICC and acted upon its
report evidencing institutional bias and therefore, failure to
reconstitute a neutral committee renders the proceedings non-est in
law and without jurisdiction. He has submitted that the ICC has
committed an error in holding that absence of “sexual undertones”
negates sexual harassment as contemplated under Section 2(n) of the
POSH Act, which includes physical contact and advances and otherPage 8 of 42
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unwelcome conduct of sexual nature. He has submitted that the
impugned Final Report itself records that Mr. Jayen Mehta held the
petitioner’s wrist and that a physical scuffle ensued for the purpose of
snatching her personal mobile phone and therefore, the ICC’s
reasoning that such conduct is legally permissible if not accompanied
by “sexual intent” is contrary to the plain language of the statute. He
has submitted that the ICC has selectively relied upon CCTV footage
and absence of corroborative witness testimony to label the
petitioner’s complaint as “false and baseless,” while simultaneously
accepting and acting upon collateral, anonymous and untested
material (the patrikas/letters) and the counter-complaint of Ms.
Shefali Vijaywargiya. He has submitted that the Final Report admits
that physical contact occurred but proceeds to dilute its seriousness
by speculating that Mr. Jayen Mehta acted on instinct or suspicion and
the ICC has effectively justified the use of force by a superior officer
on the basis of unverified suspicion, which is perverse and contrary to
settled principles governing appreciation of evidence. He has further
submitted that the ICC has failed to adequately consider that the
witnesses examined were employees subordinate to Mr. Jayen Mehta,
thereby compromising the independence of their testimony.
7.1 Learned counsel Mr. Joshi has submitted that the ICC has relied
upon anonymous patrikas, police communications and third-party
material to discredit the petitioner without testing their authenticity,
authorship, or chain of custody and such material, if relied upon,
ought to have been subjected to proper evidentiary scrutiny and thus,
the use of unverified defamatory material to undermine the credibility
of the complainant violates the principles of fairness and
reasonableness under Article 14 of the Constitution of India. He has
submitted that the impugned Final Report applies a restrictive andPage 9 of 42
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hyper-technical interpretation of Section 2(n) to the petitioner’s
complaint while simultaneously treating the complaint of Ms.
Vijaywargiya as falling within the ambit of the POSH Act. He has
submitted that while dismissing the petitioner’s complaint on the
ground that there was no “sexual intent”, the ICC admitted and acted
upon Ms. Shefali Vijaywargiya’s complaint which alleged that
defamatory letters and photographs “outraged modesty” and thus,
the ICC’s approach is inconsistent and mutually contradictory and the
Final Report thus, discriminates between two complaints arising from
the same factual matrix and applies different legal standards, thereby
violating Article 14 of the Constitution of India. He has submitted that
even assuming that the ICC has not find overt sexual intent, but it has
still failed to consider that the conduct of Mr. Jayen Mehta falls
squarely within Section 3(2) of the POSH Act and thus, the physical
force used by a high-ranking Managing Director against a junior
female employee, resulting in medical distress and intimidation,
created an “intimidating, hostile or offensive work environment” and
interfered with her work and employment security, however, the ICC
has failed to examine whether the conduct amounted to implicit
threat, humiliation, or interference with employment status, all of
which are statutorily recognized consequences under Section 3(2) of
the POSH Act. He has submitted that the ICC has failed to consider the
medical report of the petitioner following the incident, which recorded
symptoms of physical distress and visible bruising and therefore, the
absence of visible injury on CCTV footage does not negate the
occurrence of unwelcome physical force, however, the ICC has neither
reconciled the medical report with its findings nor provided reasons
for discounting such contemporaneous evidence and thus, the
findings recorded by the ICC are perverse and based on incomplete
evaluation of material evidence.
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incident and filing of the complaint, the petitioner’s official email and
access credentials were blocked, she was subjected to police
pressure, and ultimately her services were terminated, inter alia,
based upon the impugned Final Report and therefore, such acts
constitute victimization and punitive retaliation for invoking the POSH
mechanism and are contrary to the statutory duty of the employer
under Section 19 of the POSH Act. He has submitted that the
respondent No. 1 deliberately failed to implement the order dated
19.01.2026 passed by the State Human Rights Commission directing
constitution of a neutral committee and instead of that, they had
proceeded to act upon the impugned Final Report and terminated the
services of the petitioner and thus, the refusal to comply with a
direction aimed at ensuring fairness demonstrates mala fide intent to
shield a high-ranking official and to penalize the complainant.
7.3 In support of his submissions, learned counsel Mr. Joshi has
referred and relied upon the following decisions of the Hon’ble Apex
Court as well as this Court :
[I] Shridhar C. Shetty (Deceased) Through Legal
Representatives vs. Additional collector and Competent
Authority and Others, [2020] 9 SCC 537;
[II] Medha Kotwal Lele and Others vs. Union of India and
Others, [2013] 1 SCC 297;
[III] Anand Khakhar & Ors. vs. Khushbu Pathan & Anr.,
SCA/15519/2024;
[IV] Modex Trading Private Limited vs. Ashish Ashokkumar
Goswami & Ors., LPA/579/2025;
[V] S. Ravi Selvan vs. Central Board of Indirect Taxes &
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Customs, [2022] SCC OnLine Mad 9913.
8. Per contra, learned counsel Mr. Keyur Gandhi, appearing on
behalf of the respondents, has vehemently objected the present
petition and submitted that the present petition filed by the petitioner
challenging the Final Report dated 25.09.2025 issued by the Internal
Complaints Committee [“ICC”] under the POSH Act is not maintainable
and deserves to be dismissed in limine only on this ground. He has
submitted that the petitioner had filed a Complaint vide e-mail dated
29.05.2025 to the Chairman, Gujarat Co-operative Milk Marketing
Federation [“GCMMF”] complaining about sexual harassment by Mr.
Jayen Mehta – Managing Director of the respondent No. 1 and Ms.
Shefali Vijaywargiya – Deputy Manager, Marketing Department of the
respondent No. 1, which came to be numbered as Case No. 1 of 2025
– Complaint of Ms. Ashima Minocha and subsequently, on 03.06.2025,
the respondent No. 2- ICC received a separate complaint from Ms.
Shefali Vijaywargiya, in which she complained against the petitioner
and other unknown people who have outraged her modesty and
defamed her by circulating anonymous letters containing false
narratives, which was registered as Case No. 2 of 2025. He has
submitted that the respondent No. 2 – ICC, after considering both the
complaints, has issued the Impugned Report. He has submitted that
the respondent No. 2 – ICC, in Case No. 1 of 2025 of the petitioner has
concluded that the petitioner has made an allegation of sexual
harassment against Mr. Jayen Mehta – Managing Director of the
respondent No. 1 and Ms. Shefali Vijaywargiya Deputy Manager,
Marketing Department, knowing the same to be false and incorrect.
He has submitted that the Committee has also observed that the
petitioner consciously concealed material facts from the Committee
and did not give true narration of the entire episode that unfolded onPage 12 of 42
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the 28.05.2025. He has submitted that the ICC has also observed that
the statements made by the petitioner are false and misleading in
nature and therefore, as per Section 14 of the POSH Act, the ICC
members unanimously rejected petitioner’s complaint and advised
the Administration Department of the respondent No. 1 to take
suitable disciplinary action against the petitioner in accordance with
the provisions of the service rules applicable. He has submitted that in
Case No. 2 of 2025 – Complaint of Ms. Shefali Vijajwargiva, the
respondent No. 2 – ICC has concluded that the circulation of
anonymous letters/patrikas are serious and cognizable offence and
Ms. Shefali Vijajwargiya was subjected to character assault through
the defamatory letters/patrikas circulated with her photographs. He
has submitted that it was also observed that the interim police
investigation report suggests involvement of the petitioner as the
photos of Ms. Shefali Vijajwargiya, circulated in the letters/patrikas
were found in her mobile device. He has submitted that the
respondent No. 2 – ICC, relying on Section 11 (1) of the POSH Act,
decided to admit the complaint made by Ms. Shefali Vijajwargiya
dated 03.06.2025 and directed the Complaint to be forwarded to the
police for detailed investigation and take appropriate action as per the
law against all involved. He has submitted that the respondent No. 2 –
ICC also recommended the Administration department of GCMMF to
take appropriate disciplinary action as per the rules.
8.1 Learned counsel Mr. Gandhi has submitted that the petition will
not be maintainable on two counts viz., (1) respondent No. 1 is not a
‘State’ under Article 12 of the Constitution of India in accordance with
settled legal position as derived from various settled case-laws on the
issue; and (2) In any event, the petitioner has an alternative remedy
to file an Appeal before the appellate forum available under the
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provisions of POSH Act and Rules, and further, (3) Without prejudice
to the above contentions, the alleged act does not fall within the
definition of ‘sexual harassment’ as defined under Section 2(n) of the
POSH Act. He has submitted that the petitioner has an alternative
remedy to file an Appeal under the POSH Act and Rules and therefore,
an Appeal is required to be filed under Section 18 of the POSH Act
within 90 days of the Committee Recommendations i.e., Report before
the Appellate Authority notified under Section 2(a) of the Industrial
Employment (Standing Orders) Act, 1946. He has submitted that in
the facts of the present case, the ICC report is dated 25.09.2025 and
hence, the prescribed period of limitation to file an Appeal before the
Appellate Authority is also over. He has submitted that instead of
filing an Appeal, the petitioner has filed the captioned petition which
is not maintainable in view of availability of the aforesaid alternative
remedy. He has submitted that as per the settled legal position, writ
jurisdiction can be exercised in case of alternative remedies only in
three contingencies i.e. (1) Enforcement of Fundamental Rights, (2)
When there is failure of natural justice; and (3) Orders or proceedings
are wholly without jurisdiction or varies of the fact is challenged,
however, in the present case, no any fundamental rights of the
present petitioner has been violated by the respondents and the
petitioner has been provided that sufficient opportunity of hearing
and hence, there is no violation of principles of natural justice. He has
further submitted that the petitioner has not pleaded any of the above
contingencies in the petition for this Court to exercise Writ Jurisdiction
and therefore, no contingencies exit for exercising Writ Jurisdiction by
this Court to interfere with the Report dated 25.09.2025, hence, the
captioned petition filed by the petitioner is not maintainable and the
petitioner may be directed to avail appropriate remedy of appeal
under the POSH Act and Rules. He has submitted that it is a settled
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legal position that Appeal under Section 18 of the POSH Act is an
efficacious alternative remedy to challenge recommendations / report
of the ICC and therefore, no writ petition can lie against the
recommendations / report of the ICC and it has also been held by
Courts that the Court should refrain from exercising writ jurisdiction in
view of availability of alternative remedy of Appeal under POSH Act.
He has further submitted that from bare perusal of Section 18, it is
amply clear that where the service rules applicable to the person
concerned do not provide a forum for preferring an Appeal in respect
of matters mentioned therein, the Appeal has to be preferred in the
manner prescribed under the POSH Act and hence, the present
petition deserves to be dismissed on this ground.
8.2 Learned counsel Mr. Gandhi has submitted that the respondent
No. 1 is registered on 09.07.1973 by the Joint Registrar of Co-
operative Societies (Sugar) Gujarat and therefore, the present petition
is not maintainable as the respondent No. 1 – Gujarat Co-operative
Milk Marketing Federation Limited (GCMMF) does not fall within the
ambit of ‘State’ or the ‘Other Authorities’ as defined under Article 12
of the Constitution of India, as the respondent No. 1 is a co-operative
society registered under Section 10 of the provisions of the Gujarat
Co-operative Societies Act, 1961 and as per the settled legal position,
a co-operative society is not ipso facto ‘State’ under Article 12 of the
Constitution of India. He has submitted that the as per Article 12 of
the Constitution the ‘State’ includes ‘all local and other authorities
within the territory of India or under the control of the Government of
India’. He has further submitted that it is also a settled legal position
that an entity to be an ‘Authority’ under Article 12, it must be
financially, functionally and administratively dominated by or under
the control of the State and it has been consistently held that an
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entity will not be a ‘State’, if there is no financial dependence on
State, absence of administrative domination and the functions are not
essential governmental functions. He has submitted that it has been
further held by the Courts that a writ petition under Article 226 of the
Constitution would be maintainable against (i) the Government; (ii) an
authority; (iii) a statutory body; (iv) an instrumentality or agency of
state; (vi) a private body run substantially on State funding; (vii) a
private body discharging public duty or positive obligation of public
nature; and (viii) a person or body under liability to discharge any
function under any statute, to compel it to perform such a statutory
function and the Courts have further laid down twin tests for
maintainability of the writ viz., (1) the person or authority is
discharging public duty / public functions; (2) Their action under
challenge falls in domain of public law and not under common law,
and merely because a writ petition can be maintained against the
private individual / establishment discharging the public duties and/or
public function, the same should not be entertained if the
enforcement is sought to be secured under the realm of a private law
and thus, the right which purely originates from a private law cannot
be enforced taking aid of the writ jurisdiction irrespective of the fact
that such institution is discharging the public duties and/or public
functions.
8.3 So far as the submissions with regard to the fact that the
respondent No.1 is not a ‘State’ under Article 12 of the Constitution of
India is concerned, learned counsel Mr. Gandhi has referred and relied
upon the following decisions of the Hon’ble Apex Court as well as this
Court :
[I] Managing Director, Kaira Co-operative Milk Producers vs.
Union Limited, Letters Patent Appeal No. 59 of 1984 in SpecialPage 16 of 42
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Civil Application No. 855 of 1983 (para-2);
[II] Bipinchandra Jugaldas Soni, Madhusudan Manikant Vedant
vs. Gujarat State Co-operative Cotton Federation, [1984] Law
Suit (Guj) 209 (para-4);
[III] Pradeep Kumar Biswas vs. Indian Institute of Chemical
Biology and Others, [2002] 5 SCC 11 (Para-40);
[IV] Thalappalam Service Co-op. Bank Limited vs. State of
Kerala and Others, [2013] 6 SCC 82 (Paras-17, 18, 20, 32, 38,
46);
[V] K.K. Saksena vs. International Commission on Irrigation
and Drainage and Others, [2015] 4 SCC 670 (Paras-46 to 49);
[VI] Hema Ritesh Thakker and Others vs. State of Gujarat and
Others, [2016] LawSuit (Guj) 1306 (Paras-31, 38, 39, 44);
[VII] St. Mary’s Education Society vs. Rajendra Prasad
Bhargav, [2022] 4 SCT 94 (Para-68);
[VIII] Jignesh Sureshbhai Shah vs. State of Gujarat and Others,
[2024] LawSuit (Guj) 1490 (Paras-6 to 8);
[IX] Army Welfare Education Society, New Delhi vs. Sunil
Kumar Sharma and Others, [2024] SCC OnLine 1683 (Paras-41,
42);
[X] Vaneeta Patnaik vs. Nirmal Kanti Chakrabati and Others,
[2025] LawSuit (SC) 1248 (Paras-14, 24 to 27, 31, 32);
8.4 So far as the statutory alternative remedy available to the
petitioner to file an Appeal under the POSH Act read with Rules is
concerned, learned counsel Mr. Gandhi has referred and relied upon
the following decisions of the Hon’ble Apex Court as well as different
Courts of India :
[XI] Suresh Babu vs. Regional Joint Labour Commissioner,
Ernakulam and Others, [2017] LawSuit (Ker) 2230 (Para-2);
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[XII] ABC vs. Internal complaints Committee and Others,
[2025] SCC OnLine Bom 4192 (Paras-25 to 29, 33, 34, 39, 43
to 46);
[XIII] Radha Krishnan Industries vs. Himachal Pradesh and
Others, [2021] 6 SCC 771 (Paras-24 to 27); and8.5 So far as the contention with regard to the fact that the alleged
act does not fall under the definition of ‘Sexual Harassment’ under
Section 2(n) of the POSH Act is concerned, learned counsel Mr. Gandhi
has referred and relied upon the decision of the Madras High Court
rendered in case of D.S. Radhika vs. Secretary to Government,
Health, Medical and Family Welfare Department, [2023]
LawSuit (Mad) 674 (Para-5).
8.6 Thus, considering the principles laid down by the Hon’ble
Supreme Court as well as different Courts and in view of the
submissions advanced hereinabove and particularly in view of the
present preliminary objections regarding the maintainability of the
petition, learned counsel Mr. Gandhi has urged that the petitioner is
not entitled to any of the reliefs sought for in the captioned petition
and therefore, the present petition be dismissed and no interference
is required to be called for in the impugned Final Report of the ICC.
9. Referring to the affidavit-in-rejoinder filed on behalf of the
petitioner, learned counsel Mr. I.G. Joshi has submitted that no
alternative, much less efficacious remedy is available to the petitioner
under the POSH Act, as Section 18 of the POSH Act provides for an
appeal against the recommendations / report of the ICC before a
“Court” or “Tribunal” in accordance with the applicable service rules
and in absence of such service rules, the appeal is to be preferred “inPage 18 of 42
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such manner as may be prescribed”, i.e., under Rule 11 of the POSH
Rules. He has submitted that Rule 11 contemplates an appeal before
an appellate authority notified under Section 2(a) of the Industrial
Employment (Standing Orders) Act, 1946 and in the State of Gujarat,
such appellate authority is stated to be the Industrial Court,
Ahmedabad, however, the Industrial Court derives its jurisdiction from
the Gujarat Industrial Relations Act, 1946 and is confined strictly to
powers conferred under the said statute, more particularly under
Section 87(x) of the said Act and there is no notification or statutory
conferment empowering the Industrial Court to adjudicate appeals
under Section 18 of the POSH Act and in absence of such conferment,
the Industrial Court cannot assume jurisdiction beyond its statutory
mandate. In support of his submissions, he has referred and relied
upon the decision of the Hon’ble Supreme Court rendered in case of
Shridhar C. Shetty (Supra).
9.1 Learned counsel Mr. Joshi has submitted that appeals
purportedly filed under the POSH Act before the learned Industrial
Court are not traceable to any provision under the POSH Act itself, but
are instead based on a notification dated 31.12.1979, under which
employer institutions and/or complainants have approached the
learned Industrial Court by invoking the framework of the Industrial
Employment (Standing Orders) Act, 1946, however, in absence of any
subsequent notification issued by the State Government, and in the
absence of any Appellate Authority constituted under the POSH Act by
respondent No. 1, no statutory forum is in fact available to the
petitioner. He has submitted that the Industrial Court, being a
statutory authority constituted under the Gujarat Industrial Relations
Act, 1946 cannot exercise jurisdiction beyond what is expressly
conferred upon it under the said State legislation, nor can it
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adjudicate disputes arising under a Central legislation of nationwide
applicability, in the absence of a specific conferment of jurisdiction.
He has submitted that even assuming that the learned Industrial
Court could entertain an appeal under the POSH Act, it would, in the
absence of a specific Government notification or express conferment
of jurisdiction, be unable to adjudicate such proceedings. He has
submitted that the jurisdiction of the Industrial Court is confined to
matters arising out of the interpretation and application of standing
orders under the Industrial Employment (Standing Orders) Act, 1946,
and in the absence of certified standing orders applicable to the
present case, it would lack the jurisdiction to entertain such an
appeal. He has submitted that the aforesaid position is further
reinforced by Section 18 of the POSH Act itself, which provides that an
appeal shall lie before a court or tribunal in accordance with the
service rules applicable to the aggrieved person, however, in the
present case, no such forum is available under the applicable service
framework. He has submitted that even if this Court does not accept
the aforesaid submissions, the petitioner would still be left with no
efficacious remedy except to invoke the jurisdiction of this Court for
enforcement of fundamental rights. He has submitted that upon the
implementation of the Industrial Relations Code, 2020, the Industrial
Employment (Standing Orders) Act, 1946 stands repealed with effect
from 21.11.2025 and consequently, any notification issued under the
repealed enactment would also cease to have effect, thereby
extinguishing even the purported appellate forum relied upon by
respondent No. 1, and under such circumstances, the petitioner has
no alternative but to approach this Court.
9.2 Learned counsel Mr. Joshi has submitted that while the
exceptions carved out by the Hon’ble Supreme Court and this Court
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regarding maintainability of writ petitions despite availability of an
alternative remedy are well settled, the present case is not one of
bypassing a statutory remedy and on the contrary, it is a case where
no efficacious statutory remedy exists. He has submitted that the
issues involved pertain to the protection of dignity and rights of a
female employee, which are rooted in constitutional guarantees and
are recognized under the POSH Act and in such circumstances, the
exercise of jurisdiction under Article 226 of the Constitution of India is
not only justified but necessary, as it constitutes the only effective
remedy available to the petitioner. He has submitted that the Hon’ble
Supreme Court in case of Medha Kotwal Lele (Supra) has noted
the absence of a clear appellate mechanism under the POSH
framework and even this Court, in pending proceedings, has stayed
similar proceedings before Labour / Industrial Courts and called upon
the State to clarify the issue of jurisdiction (SCA No. 15519 of 2024
Orders dated 25.11.2024 and 25.11.2025, LPA Nos. 579-580 of 2025-
Order dated 01.05.2025). He has submitted that the reliance on the
Industrial Employment (Standing Orders) Act, 1946 is rendered further
untenable in view of its repeal upon enforcement of the Industrial
Relations Code, 2020, thereby extinguishing even the purported
appellate framework and in these circumstances, the petitioner is left
remediless under the statutory scheme, thereby necessitating
invocation of the writ jurisdiction of this Court.
9.3 Learned counsel Mr. Joshi has submitted that the objection
raised by the respondent No. 1 regarding maintainability on the
ground that it is not “State” under Article 12 is misconceived and
irrelevant in the facts of the present case as the present petition
primarily seeks enforcement of fundamental rights under Articles 14,
15 and 21 of the Constitution of India, particularly the right to dignity
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and a safe working environment, which are also embedded in the
object of the POSH Act and therefore, the said contention deserves to
be deprecated, as it is wholly extraneous to the controversy at hand
and does not materially affect the issue in question. He has submitted
that irrespective of whether an Internal Complaints Committee (ICC)
constituted under the POSH Act in the State of Gujarat falls within the
aforesaid definition, any challenge to the decision of such Committee
would lie only before this Court, being a Constitutional Court, in view
of the absence of any “Court” or “Tribunal” vested with the appellate
powers contemplated under Section 18 of the POSH Act read with
Rule 11 of the Rules framed thereunder. He has submitted that it is
well settled that writ jurisdiction can be invoked against private
bodies where: (i) public duties are discharged; (ii) statutory functions
are performed; or (iii) fundamental rights are violated and the ICC,
being a statutory / quasi-judicial body under the POSH Act, is
amenable to writ jurisdiction and the employer itself operates within a
regulatory framework and exercises significant public functions. In
support of his submissions he has referred and relied upon the
decision of the Hon’ble Supreme Court rendered in case of Kaushal
Kishor vs. State of Uttar Pradesh, reported in [2023] 4 SCC 1,
wherein, the Hon’ble Supreme Court has clarified that enforcement of
fundamental rights can, in appropriate cases, extend even against
private employers.
9.4 Learned counsel Mr. Joshi has submitted that in view of the
aforesaid and in the absence of any applicable service rules governing
the petitioner, the petitioner is constrained to invoke the writ
jurisdiction of this Court for enforcement of her fundamental rights,
which are not only constitutionally guaranteed but are also reinforced
by the statement of objects and reasons of the POSH Act, which may
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kindly be taken into consideration by this Court while adjudicating the
present petition. He has further submitted that the recommendations
of the ICC did not form the basis for the termination of the petitioner,
and no material to the contrary has been placed on record by the
respondents before this Court. He has submitted that the provisions of
the POSH Act, being a piece of social welfare legislation, cannot be
construed in a narrow or restrictive manner, but must be interpreted
in the context of the “discomfort”, whether mental or physical, caused
to the aggrieved woman and in the present case, the record (at Pages
81 and 82 of the petition) clearly evidences physical discomfort and
accordingly, the definition of “sexual harassment” under Sections 2(n)
and 3 of the POSH Act must be given a purposive and contextual
interpretation, and the conduct in question squarely falls within the
ambit of the said provisions. He has submitted that the definition of
sexual harassment under the POSH Act is wide enough to encompass
both direct and implied forms of unwelcome conduct and herein the
present case, the undisputed use of force upon the petitioner,
specifically, holding her wrist and forcibly snatching her mobile phone,
as recorded in the impugned Final Report, clearly constitutes
unwelcome physical conduct. He has submitted that the impugned
report proceeds on an erroneous premise that the absence of “sexual
intent” or “sexual undertones” negates the existence of sexual
harassment, which is contrary to the statutory scheme of Sections
2(n) and 3 of the POSH Act, which emphasize the nature and impact
of the conduct, including unwelcome physical contact, affront to
dignity, and the creation of a hostile or intimidating work
environment, rather than the subjective intent of the perpetrator and
significantly, the ICC itself has recorded that a superior officer held
the petitioner’s wrist and forcibly snatched her phone, which conduct
is inherently unwelcome and violative of dignity, irrespective of the
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alleged motive. He has submitted that the statutory test under the
POSH Act is thus one of the nature and effect of the conduct, and not
the intent behind it and therefore, the reasoning adopted by the ICC is
contrary to the scheme of the Act. Moreover, the ICC has applied
inconsistent and arbitrary standards by rejecting the petitioner’s
complaint on the ground of absence of “sexual intent”, while
simultaneously entertaining a counter-complaint alleging “outraging
modesty” on tenuous material, and such contradictory reasoning is
manifestly arbitrary and violative of Article 14 of the Constitution. He
has submitted that even assuming arguendo that explicit sexual
intent is absent, the conduct in question squarely falls within the
ambit of Section 3(2) of the POSH Act, inasmuch as it resulted in the
creation of an intimidating and hostile work environment for the
petitioner and therefore, learned counsel Mr. Joshi has urged that the
present petition be allowed and the impugned Final Report dated
25.09.2025 be quashed and set aside.
ANALYSIS
10. I have heard the learned counsel appearing for the respective
parties and perused the material placed on record. For the foregoing
facts mentioned hereinabove, the issue posted before me for the
purpose of determining is that, whether the Final Report passed by
the respondent authority is required to be interfered with by this
Court by exercising jurisdiction under Article 226 / 227 of the
Constitution of India or not, whether there is any illegality / perpetual
illegality committed by the respondent authority while issuing the
Final Report, and without joining the concerned person who is going
to be directly effected by the order passed by this Court whether this
Court can interfere with the Final Report passed by the respondent
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authority and lastly, whether the present petition is maintainable
against the respondent No.1 – Gujarat Co-operative Milk Marketing
Federation Limited as a writ maintainable against a private society
without availing statutory alternative remedy available to the
petitioner.
11. After going through the facts of the present case and on perusal
of the impugned Final Report dated 25.09.2025 issued by the
respondent No.2 – ICC which is the subject matter in the present
petition, it emerges that the petitioner had raised a complaint under
the provisions of the POSH Act complaining about sexual harassment
against one Mr. Jayen Mehta, the Managing Director of the respondent
No.1 and Ms. Shefali Vijaywargiya. It appears from the record that the
petitioner was appointed as a Senior Executive (Sales) by the
respondent No.1 Co-operative Society on 18.04.20218 and she was to
report at Ludhiana Branch Office. Thereafter, the petitioner was
transferred from Ludhiana Branch to Head Office, Anand vide transfer
order dated 04.08.2018 and therefore, she reported at the Anand
Office and in the year 2021, she was promoted to the post of Assistant
Manager (Marketing). Then on 28.05.2025, the petitioner raised a
complaint before the respondent No.1 against the Managing Director –
Mr. Jayen Mehta alleging that Mr. Mehta misbehaved with her and
assaulted her and also improperly touched and twisted her hand. The
petitioner had also raised the said complaint before the Inspector
General of Police, Ahmedabad Range on 04.06.2025 and also
forwarded the same to the Chair Person of the Gujarat State Human
Rights Commission. Ms. Shefali Vijaywargiya, against whom
allegations were made, had also filed complaint against the present
petitioner before the respondent No.2 – ICC on 03.06.2025 alleging
that the petitioner and other unknown people had outraged her
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modesty and defamed her by circulating anonymous letters
containing false narratives. Thereafter, the said Mr. Jayen Mehta and
Ms. Shefali Vijaywargiya filed their respective replies through email on
18.07.2025 before the respondent No.1 – ICC. The petitioner had also
given her complaint to the members of the respondent No.2
Committee. In response thereto, the Internal Complaints Committee
as constituted under the Act had initiated inquiry and prepared a
detailed report on 25.09.2025 and also made recommendations to the
respondent No.1 – Co-operative Society in para-51, which is
reproduced hereunder :
RECOMMENDATIONS
“51. Case No. 1 of 2025 : Complaint of Ms. Ashima Minocha : ICC has
concluded that Ms. Ashima Minocha has made the allegation of sexual
harassment, knowing the same to be false and incorrect. The committee
members also observed that Ms. Ashima Minocha consciously concealed
material facts from this committee and did not give true narration of the
entire episode that unfolded on the evening of 28.05.2025. Ms Ashima
Minocha’s statements to the committee, both in her interview and the
written complaint submitted, detailed the allegations of sexual harassment
and molestations by Jayen Melita and Ms Shefali Vijaywargiya. Based on the
available evidence, ICC is of the opinion that the statements are false and
misleading in nature.
Thus, according to Section 14 of the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act 2013, the ICC
members unanimously reject her complaint and advise the Administration
Department of GCMMF Ltd., to take suitable disciplinary action against Ms
Ashima Minocha in accordance with the provisions of the service rules
applicable.
Case No. 2 of 2025 : Complaint of Ms. Shefali Vijaywargiya : ICC has
concluded that the circulation of the above-mentioned anonymous
letters/patrika are serious and cognizable offence and the complainant, Ms.
Shefali Vijaywargiya was subjected to character assault through the
defamatory letters/patrika circulated with her photographs. The interim
police investigation report suggests involvement of Ms Ashima Minocha as
the photos of Ms. Shefali Vijaywargiya, circulated in the letters/patrika,
were found on her mobile. Therefore, as per Section 11(1) of the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal)
Act 2013, ICC decides to admit the Complaint made by Ms. Shefali
Vijaywargiya dated 03.06.2015 (received on 09.06.2025) and forward it to
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police for detail investigation and take appropriate action as per law against
all involved. ICC also recommends the Administration department of
GCMMF to take appropriate disciplinary action as per rules against whoever
found involved.”
11.1 While recording the reasons in detail, the authority has
examined all the relevant aspects including CCTV Footage with regard
to the alleged incident as asserted by the petitioner against Mr. Jayen
Mehta, however, without joining Mr. Jayen Mehta, the petitioner has
preferred this petition and the contention raised by the learned
counsel Mr. Joshi for the petitioner and in light of the reasons stated
by the respondent No.2 – ICC, it appears that there is no illegality /
perpetual illegality committed by the ICC while recording the reasons
and recording the recommendations, however, the contention raised
by the learned counsel Mr. Gandhi for the respondents with regard to
the maintainability of the present petition is concerned, the
respondent No.1 is a Milk Marketing Federation registered under the
Gujarat Co-operative Societies Act, 1961 and whether the said
Federation is amenable under Article 12 of the Constitution of India or
not, is required to be looked into first. On perusal of the affidavit-in-
reply filed by the respondent No.1 and while examining the
averments made by the respondent No.1 in para-6 with regard to the
fact that whether writ can be issued against the respondent No.1 as it
is amenable under the writ jurisdiction as defined under Article 12 of
the Constitution because, the said Society is registered under the
Gujarat Co-operative Societies Act, 1961 on 09.07.1973 and though it
is a Multi State Co-operative Society and having monopoly in the field,
it does not fall under the ambit of Article 12.
11.2 At this juncture, it would be appropriate to refer to the
recent decision of the Hon’ble Apex Court rendered in case of
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Gajanan M. Naik vs. Goa State Co-Op. Milk Producers’ Union
Ltd. and Another, reported in [2024] SCC OnLine Bom 1269,
wherein, it has been observed and held by the Division Bench of the
Bombay High Court as under :
“C. WHETHER THE UNION ENJOYS A MONOPOLY/APEX STATUS
CONFERRED BY THE STATE OR IS STATE PROTECTED OR WHETHER
IT DISCHARGES PUBLIC FUNCTIONS AS PERFORMED BY A STATE :
I. It was submitted that the Union enjoys a total monopoly in the area of
producing/processing and distribution of milk in the State of Goa, and being
the only player in the market, the State has raised the Union to the status
of an Apex Milk Producer/Distributor. This pleading has been specifically
denied by the Respondent Union stating in its written that there is no
monopoly enjoyed by the Respondent in the market as there are atleast
two other milk producers and distributors named Amul and Govan who
process and market milk and milk products in the State of Goa. The reply
also states that similar business is also carried out by M/s Igloo Cold
Storage and Samarth Dairy, both of which have their units at IDC-Kundaim,
at Goa. The reply further states that there are other entities within the
State of Goa who receive and sell milk and milk products from neighbouring
States under the brand names Nandini, Warna, Gokul, Govind, Shree
Krishna, Mahanand, Arogya and Aditya. In the affidavit-in-rejoinder, apart
from a bald denial, there does not appear to be positive traverse or
assertion to these specific facts pleaded by the Respondent. There is no
reason to disbelieve the statements made in the affidavit of the
Respondent on this count and in any event these would be highly disputed
questions of fact on which we would place no reliance. We therefore hold
that the Petitioner, apart from the statement made in the Petition, which is
denied has not placed uncontroverted material before us to demonstrate
that the Respondent Union has complete monopoly at the behest of the
State, in the area of production and distribution of milk and milk products
within the State of Goa.
II. It was further contended that the Respondent Union has the status of an
Apex Milk Distribution Society having complete monopoly in the area of
supply/distribution of milk within the State of Goa. Under sub- section (3) of
Section of the Goa Co-operative Societies Act, and “Apex Society” means a
society, the area of operation of which extends to the whole of the State of
Goa, and the main objects of which is to promote the principal object of the
societies affiliated to it as members and to provide for the facilities and
services to them and which has been classified as an Apex Society by the
Registrar. Thus, by a definition, an Apex Society operates for implementing
objects of its constitutional society members and provides facilities and
services to its members; such a society is required to be declared as an
Apex Society by the Registrar. No such a declaration has been produced by
the Petitioner before us to claim that Respondent No.1 is an “Apex Society”
under the Act.
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The classification and sub-classification of societies under the Act is
done under Rule 8 of the Goa Co-operative Societies Rules, 2003, under
which Apex Societies are one such classification, besides other
classifications such as co- operative farming societies, of which Dairy
Societies are a sub-classification. On going through the scheme of the Co-
operative Societies Act, we do not find any special status conferred upon an
Apex Society, even if the Respondents were to have been declared as one,
to confer upon it a monopoly status, as contended.
III. A similar argument was raised before the Full Bench of this Court in
Vassudev Madkaikar (supra) which is dealt with in paras 25 and 26 of the
judgment. Therein it is held that merely because a particular co-operative
society has been declared as an Apex Society or, as in that case a “State
Co-operative Bank” and has received such recognition under the Act, it
cannot be said that it enjoys a complete monopoly in the field. This Court
has further noted that being declared an Apex Body, may confer certain
benefits on it, but by merely projecting it on a higher pedestal that other
societies registered under the Co-operative Societies Act, does not lead to
the conclusion that it satisfies the test of it being a functionality of the
State, attracting the expressing “Other Authorities”, within the meaning of
Article 12. On the same reasoning, this Court has held that such a society,
which enjoys apex status, does not confer upon it the character of being an
instrumentality or agency of the State Government. For reasons stated
above, we reject this contention.
IV. It was further argued that since the main object of the Respondent
No.1-Union is to distribute milk to consumers within the State of Goa, milk
being a product which is a necessity for human population and for their
sustenance such a function partakes of a public function which would be
performed by the State; that since such a public function is being
performed by the Union on behalf of the Government of Goa, it is acting as
an instrumentality of the State and is, therefore, amenable to the writ
jurisdiction of this Court. The Petitioners rely upon a Judgment of this Court
in Dr. Ajit T. Kossambe (supra) to buttress this contention.
At the outset, we note that the Court, whilst passing its order in that
case, was only dealing with such a contention raised at the interim stage
and for the purpose of grant of an interim relief to the Petitioner and has
not finally decided this issue. In fact, at para 18 of its order the question of
whether a writ would lie against the Respondent-Union was specifically kept
open to be decided at the stage of final hearing and the order specifically
notes that the view taken was only a prima facie view. In that view of the
matter, the question not having been finally decided, the judgment in Dr.
Ajit Kossambe (supra) cannot be relied upon by the Petitioner to decide the
maintainability of this Petition.
V. In dealing with the above submission, after having applied various tests
as laid down in the judgments cited by us to the facts of the present case,
we are quite clear that the Respondent-Union is a society, like any other,
registered under the Societies Registration Act, but is not a statutory body;
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the Society is purely of a private one, managed by its members through its
Board of Directors. The Petitioner is not claiming enforcement of any
function or duty by the Union which it might have to perform under the
statute governing its functioning. Keeping these facts in mind, we would
have to examine whether the society performs any functions which are of
public character.
In Shree Anandi Mukta (supra), the Supreme Court is has decreed
that if the rights claimed by a petitioner are purely of private character no
mandamus can issue; as in that case, if the management of the college was
purely a private body with no public duty, mandamus will not lie. It further
held that the words “any person or Authority” used in Article 226 are not to
be confined only to statutory authority and instrumentalities of State and
they may cover any other person or body performing public duty. What is
relevant is not the form of the body but the nature of the duty imposed on
the body, which must be judged in the light of positive obligation owed by
the person or authority, to the affected person.
VI. Andi Mukta Sadguru (supra) was further clarified in K.K. Saksena vs
International Commission on Irrigation and Drainage and ors., reported in
(2015) 4 SCC 670, holding that even when a body is performing public duty,
all its decisions are not subject to judicial review and it is only those
decisions which have a public element that can be reviewed in exercise of
writ jurisdiction. We quote from K.K. Saksena (supra) as under :
“49. There is yet another very significant aspect which needs to be
highlighted at this juncture. Even if a body performing public duty is
amenable to writ jurisdiction, all its decisions are not subject to
judicial review, as already pointed out above. Only those decisions
which have public element therein can be judicially reviewed under
writ jurisdiction. In The Praga Tools Corporation v. Shri C.A. Imanual
& Ors.11, as 11 (1969) 1 SCC 585 Page 3536 already discussed
above, this Court held that the action challenged did not have public
element and writ of mandamus could not be issued as the action
was essentially of a private character. That was a case where the
concerned employee was seeking reinstatement to an office.
50) We have also pointed out above that in Sata Venkata Subba Rao
(supra) this Court had observed that administrative law in India has
been shaped on the lines of English law. There are catena of
judgments in English courts taking same view, namely, contractual
and commercial obligations are enforceable only by ordinary action
and not by judicial review. In Queen (on the application of Hopley)
v . Liverpool Health Authority & Ors. (unreported) (30 July 2002),
Justice Pithford helpfully set out three things that had to be
identified when considering whether a public body with statutory
powers was exercising a public function amenable to judicial review
or a private function. They are: (I) whether the defendant was a
public body exercising statutory powers; (ii) whether the function
being performed in the exercise of those powers was a public or a
private one; and (iii) whether the defendant was performing a publicPage 30 of 42
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duty owed to the claimant in the particular circumstances under
consideration.
51) Even in Anadi Mukta Sadguru (supra), which took a revolutionary
turn and departure from the earlier views, this Court held that ‘any
other authority’ mentioned in Article 226 is not confined to statutory
authorities or instrumentalities of the State defined under Article 12
of the Constitution, it also emphasized that if the rights are purely of
a private character, no mandamus could issue.
52) It is trite that contract of personal service cannot be enforced.
There are three exceptions to this rule, namely: (i) when the
employee is a public servant working under the Union of India or
State; (ii) when such an employee is employed by an authority/ body
which is a State within the meaning of Article 12 of the Constitution
of India; and (ii) when such an employee is ‘workmen’ within the
meaning of Section 2(s) of the Industrial Disputes Act, 1947 and
raises a dispute regarding his termination by invoking the machinery
under the said Act. In the first two cases, the employment ceases to
have private law character and ‘status’ to such an employment is
attached. In the third category of cases, it is the Industrial Disputes
Act which confers jurisdiction on the labour court/industrial tribunal
to grant reinstatement in case termination is found to be illegal.
53) In the present case, though we have held that ICID is not
discharging any public duty, even otherwise, it is clear that the
impugned action does not involve public law element and no ‘public
law rights’ have accrued in favour of the appellant which are
infringed. The service conditions of the appellant are not governed
in the same manner as was the position in Anadi Mukta Sadguru
(supra)”. (emphasis supplied)
VII. Merely claiming that supply and distribution of milk to the public within
the State of Goa partakes of a public function or duty, the Petitioner cannot
claim that the Union is a “State” for the purpose of Article 12. Distribution
of milk per se is not a public function, more so in the light of the fact that
the pleadings of the Respondents, which are otherwise not seriously
controverted that there is no monopoly in this activity with the Union and
there are multiple players in the market to compete. Applying the principles
enunciated by the Supreme Court in K.K. Saksena (supra) to the facts of the
present case, even if the Respondent-Society were discharging the duties
of a public nature, a service dispute such as the one raised in the present
Petition claiming a higher age of superannuation, does not permit the
Petitioner to take recourse to filing a petition seeking to invoke Article 226
of the Constitution of India to address it.
VIII. Vasudev Madkaikar (supra), referring to the aforementioned line of
judgments, has adopted a similar line of reasoning, which we believe is
binding on us. It holds :
“40. … Another important aspect which has to be borne in mind is
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that a writ can be issued for the discharge of only that public
function if at all a body performs a public function and not any other
function performed by it in the course of its business. Even if a body
is performing public duty and amenable to writ jurisdiction, as a
necessary sequel, all its decisions are not subject to judicial review
but only those decisions which have public element therein can be
judicially reviewed in exercise of writ jurisdiction. A fine line needs to
be drawn between the contract of service by bearing its connection
to the nature of contract and a contract of personnel service cannot
be enforced with the exception when the employee is a public
servant working under the Union of India or State, or an employee
who is employed by any authority which is recognised as ‘State’
within the meaning of Article 12 and when such an employee fall
within the ambit of “workman” within the meaning of Section 2(s) of
the Industrial Dispute Act, 1947. There cannot be any dispute that
writ is maintainable under Article 226 of Constitution of India even
against a private management for enforcing the ‘public duty’ cast
upon them, but it cannot be said that the same is available also for
enforcing the terms and conditions of service in every situation.
With the said observations, the Accountant who had knocked the
doors of the Court who was aggrieved by issuance of a chargesheet
by the Socio-Economic Unique Foundation, a private Society without
any government control, and which was held to be not answering
the description of a State, an agency or instrumentality of State or
that of any other authority, it was held that though acting as a
accredited agent to the Government it discharges duties of public
nature, mere service dispute in terms of non-statutory service rules
does not permit the petitioner to take recourse to Article 226 of the
Constitution of India….”
In the light of these observations, we are clearly of the opinion that
the Respondent-Society does not discharge or perform any public function.
21. In the light of what is held above, we conclude that the Respondent
No.1, Goa State Co-operative Milk Producers’ Union is not a “State” or an
instrumentality of the State nor can it be considered “any other Authority”
for the purpose of Article 12 of the Constitution of India and is, thus, not
amenable to writ jurisdiction of this Court under Article 226 of the
Constitution of India to seek the reliefs sought by the Petitioner in this
Petition. The Petition is dismissed as not maintainable. No costs.”
11.3 Yet in another recent decision of the Bombay High Court
rendered in case of ABC vs. Internal Complaints Committee and
Others, reported in [2025] SCC OnLine Bom 4192, the Bombay
High Court has discussed in detail with regard to the maintainability of
the writ petition against the private entities as well as in the face of
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alternate remedy, and observed and held as under :
“Maintainability of the writ petition against the private entities:
25. Undoubtedly, the language of Article 226 is of wide import. If the words,
“to any person or authority” are literally construed, then writ can be issued
even against private persons. Likewise, if the term, “for any other
purposes” is interpreted literally, the writ court would be within its right in
issuing a writ for any purpose whosoever, even for resolving the private
disputes. However, these expressions have not been construed in such
literal fashion. By a catena of decisions, it is firmly crystallized that a writ
will lie against the State or the instrumentality of the State, and a private
entity only when such private entity performs a public function or
discharges a public duty involving a public law element.
Maintainability of the petition in the face of alternate remedy:
34. This leads me to the principal ground of challenge to the impugned
order on the count of failure to adhere to the principles of natural justice.
Under the scheme of POSH Act, the recommendation made by the ICC is
subject to an appeal under Section 18 of the said Act before the Appellate
Authority constituted thereunder. Existence of an alternate remedy, it is
well settled, is a self-imposed restraint on the exercise of the writ
jurisdiction. It is a well settled position in law that, despite, the availability
of an alternate remedy, the writ Court is not denuded of the power of
judicial review and may exercise the plenary writ jurisdiction. The situations
in which a writ court may exercise the jurisdiction, notwithstanding the
availability of an alternate remedy are also settled by a series of
judgments. In the case of Ghanashyam Mishra and Sons (supra), on which
reliance was placed by Ms. Singhania, the Supreme Court after referring to
the previous pronouncements, including the decision of the Supreme Court
in the case of Whirlpool Corporation vs. Registrar of Trade Marks 10,
enunciated that it has been consistently held that the alternate remedy
would not operate as a bar in at least three contingencies:
“(1) where the writ petition has been filed for the enforcement of
any of the Fundamental Rights;
(2) where there has been a violation of the principle of natural
justice; and(3) where the order or proceedings are wholly without jurisdiction or
the vires of an Act is challenged.”
49. Hence, the following order:
(I) The petition stands dismissed.
(ii) In the event the petitioner files an appeal under Section 18 of the POSH
Act, within a period of four weeks from today, the time spent by thePage 33 of 42
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petitioner in prosecuting this petition may be accounted for, if the question
of limitation arises.
(iii) By way of abundant caution, it is clarified that the aforesaid
consideration is confined to determine the tenability of the petition and this
Court may not be understood to have expressed any opinion of the merits
of the matter and, in the event, an appeal is preferred, all contentions of all
the parties would be open for consideration by the Appellate Authority, and
the Appellate Authority shall decide the appeal on its own merits and in
accordance with law, without being influenced by any of the observations
made hereinabove.”
11.4 In case of S.S. Rana vs. Registrar, Co-operative
Societies and Anr.,reported in [2006] 11 SCC 634, the Hon’ble
Apex Court has observed and held as under :
“11. The respondent No.1-Society does not answer any of the afore-
mentioned tests. In the case of a non-statutory society, the control
thereover would mean that the same satisfies the tests laid down by this
Court in Ajay Hasia vs. Khalid Mujib Sehravardi [(1981) 1 SCC 722]. [See
Zoroastrian Coop. Housing Society Ltd. vs. District Registrar, Coop.
Societies (Urban) & Ors. reported in 2005 (5) SCC.
13. The decision of the Seven Judge Bench of this Court in Pradeep Kumar
Biswas (supra), whereupon strong reliance has been placed, has no
application in the instant case. In that case, the Bench was deciding a
question as to whether in view of the subsequent decisions of this Court,
the law was correctly laid down in Sabajit Tewary vs. Union of India & Ors.
[(1975) 1 SCC 485], and it not whether the same deserved to be overruled.
The majority opined that the Council of Scientific and Industrial Research
(CSIR) was a ‘State’ within the meaning of Article 12 of the Constitution of
India. This Court noticed the history of the formation thereof, its objects and
functions, its management and control as also the extent of financial aid
received by it. Apart from the said fact it was noticed by reason of an
appropriate notification issued by the Central Government that CSIR was
amenable to the jurisdiction of the Central Administrative Tribunal in terms
of Section 14(2) of the Administrative Tribunals Act, 1985. It was on the
aforementioned premises this Court opined that Sabhajit Tewary (supra) did
not lay down the correct law. This Court reiterated the following six tests
laid down in Ajay Hasia vs. Khalid Mujib Sehravardi [(1981) 1 SCC 722]:
“(1) One thing is clear that if the entire share capital of the
corporation is held by Government, it would go a long way towards
indicating that the corporation is an instrumentality or agency of
Government.
(2) Where the financial assistance of the State is so much as to meet
almost entire expenditure of the corporation, it would afford somePage 34 of 42
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indication of the corporation being impregnated with Governmental
character.
(3) It may also be relevant factor #..whether the corporation enjoys
monopoly status which is State conferred or State protected.
(4) Existence of deep and pervasive State control may afford an
indication that the corporation is a State agency or instrumentality.
(5) If the functions of the corporation are of public importance and
closely related to Governmental functions, it would be a relevant
factor in classifying the corporation as an instrumentality or agency
of Government.
(6) ‘Specifically, if a department of Government is transferred to a
corporation, it would be a strong factor supportive of this inference’
of the corporation being an instrumentality or agency of
Government.”
This Court further held:
“This picture that ultimately emerges is that the tests formulated in
Ajay Hasia are not a rigid set of principles so that if a body falls
within any one of them it must, ex hypothesi, be considered to be a
State within the meaning of Article 12. The question in each case
would be whether in the light of the cumulative facts as established,
the body is financially, functionally and administratively dominated
by or under the control of the Government. Such control must be
particular to the body in question and must be pervasive. If this is
found then the body is a State within Article 12. On the other hand,
when the control is merely regulatory whether under statute or
otherwise, it would not serve to make the body a State.”
(Emphasis supplied)
11.5 So far as the statutory alternative remedy available under
Section 18 of the POSH Act read with Rule 11 of the POSH Rules is
concerned, I am not impressed with the submissions made by the
learned counsel Mr. Joshi for the petitioner and thereby canvassing
that writ can be issued against the respondent No.1, which is wholly
without merits and thus, the said contention is rejected. Moreover,
considering the decisions of the Hon’ble Apex Court as discussed
hereinabove, when there is a statutory alternative efficacious remedy
is available to the petitioner, the Court cannot issue any writ, more
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particularly when the Final Report prepared by the respondent No.2 –
ICC is legal and valid and there is no any illegality committed by the
ICC while inquiring into the complaints in detail and I do not find any
infirmity in the impugned Final Report prepared by the ICC. Section 18
of the POSH Act read with Rule 11 of the POSH Rules, are reproduced
hereunder :
“Section 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 stub-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.
Rule 11 of the POSH Rules, 2013 provides for an Appeal as under :
“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 (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
appellate authority notified under clause (a) of section 2 of Industrial
Employment (Standing Orders) Act, 1946 (20 of 1946).”
11.6 While examining the issue involved in the present petition
as narrated by the petitioner, even the provisions of Section 2(n) of
the POSH Act are required to be looked into, which are reproduced
hereunder :
“Section 2(n) “sexual harassment” includes any one or more of the
following unwelcome acts or behavior (whether directly or by implication)
namely:–
(i) physical contact and advances; or
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(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual
nature;”
11.7 It would also be appropriate to refer to the provisions of
Section 3 of the POSH Act, which are reproduced hereunder :
“Section 3 : Prevention of sexual harassment.–
(1) No woman shall be subjected to sexual harassment at any workplace.
(2) The following circumstances, among other circumstances, if it occurs, or
is present in relation to or connected with any act or behaviour of sexual
harassment may amount to sexual harassment:–
(i) implied or explicit promise of preferential treatment in her employment;
or
(ii) implied or explicit threat of detrimental treatment in her employment; or
(iii) implied or explicit threat about her present or future employment
status; or
(iv) interference with her work or creating an intimidating or offensive or
hostile work environment for her; or
(v) humiliating treatment likely to affect her health or safety.”
11.8 Section 4 of the POSH Act provides for constitution of
Internal Complaints Committee, which is reproduced hereunder :
“Section 4 : Constitution of Internal Complaints Committee.
(1) Every employer of a workplace shall, by an order in writing, constitute a
Committee to be known as the “Internal Complaints Committee”:
Provided that where the offices or administrative units of the workplace are
located at different places or divisional or sub-divisional level, the Internal
Committee shall be constituted at all administrative units or offices.
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(2) The Internal Committees shall consist of the following members to be
nominated by the employer, namely:–
(a) a Presiding Officer who shall be a woman employed at a senior level at
workplace from amongst the employees:
Provided that in case a senior level woman employee is not available, the
Presiding Officer shall be nominated from other offices or administrative
units of the workplace referred to in sub-section(1):
Provided further that in case the other offices or administrative units of the
workplace do not have a senior level woman employee, the Presiding
Officer shall be nominated from any other workplace of the same employer
or other department or organisation;
(b) not less than two Members from amongst employees preferably
committed to the cause of women or who have had experience in social
work or have legal knowledge;
(c) one member from amongst non-governmental organisations or
associations committed to the cause of women or a person familiar with the
issues relating to sexual harassment:
Provided that at least one-half of the total Members so nominated shall be
women.
(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.
(4) The Member appointed from amongst the non-governmental
organisations or associations shall be paid such fees or allowances for
holding the proceedings of the Internal Committee, by the employer, as
may be prescribed.
(5) Where the Presiding Officer or any Member of the Internal Committee,–
(a) contravenes the provisions of section 16; or
(b) has been convicted for an offence or an inquiry into an offence under
any law for the time being in force is pending against him; or
(c) he has been found guilty in any disciplinary proceedings or a disciplinary
proceeding is pending against him; or
(d) has so abused his position as to render his continuance in office
prejudicial to the public interest,such Presiding Officer or Member, as the case may be, shall be removed
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shall be filled by fresh nomination in accordance with the provisions of this
section.”
11.9 Even the definition of Sexual Harassment under the Act is
wide enough to cover both direct or implied sexual conduct which
may involve physical, verbal or non-verbal conduct. The key
distinguishing feature is that the conduct is warranted and
unwelcomed by the recipient. The definition also includes reference to
create an offensive or intimidating or hostile work environment.
Herein the present case, whether the allegations made by the
petitioner fall under Section 2(n) of the POSH Act read with Section 3
or not. While examining the said fact, the respondent No.2 – ICC has
recorded in detail after examining relevant evidence including CCTV
footage and they have also referred the investigation carried out by
the police and thus, while carried out inquiry, the respondent No.2 –
ICC has completely followed the framework as provided under Section
11 of the POSH Act. The Inquiry Committee has submitted its report
strictly in compliance with the provisions of Section 11 of the POSH
Act. However, it is to be noted herein that Section 14 of the POSH Act
provides for protection to the concerned person against whom the
allegations are made by the complainant with regard to the offence of
sexual harassment. Section 14 makes it clear that in case that the
complaint lodged by the complainant is found to be false or malicious
and the complaint has been made knowing it to be false, the
recommendations made by the respondent No.2 – ICC are in
consonance with the settled legal principles enunciated under the Act.
Section 14 of the POSH Act reads as under :
“Section 14 : Punishment for false or malicious complaint and false
evidence.–
(1) Where the Internal Committee or the Local Committee, as the case may
be, arrives at a conclusion that the allegation against the respondent isPage 39 of 42
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malicious or the aggrieved woman or any other person making the
complaint has made the complaint knowing it to be false or the aggrieved
woman or any other person making the complaint has produced any forged
or misleading document, it may recommend to the employer or the District
Officer, as the case may be, to take action against the woman or the person
who has made the complaint under sub-section (1) or sub-section (2) of
section 9, as the case may be, in accordance with the provisions of the
service rules applicable to her or him or where no such service rules exist,
in such manner as may be prescribed:
Provided that a mere inability to substantiate a complaint or provide
adequate proof need not attract action against the complainant under this
section:
Provided further that the malicious intent on part of the complainant shall
be established after an inquiry in accordance with the procedure
prescribed, before any action is recommended.
(2) Where the Internal Committee or the Local Committee, as the case may
be, arrives at a conclusion that during the inquiry any witness has given
false evidence or produced any forged or misleading document, it may
recommend to the employer of the witness or the District Officer, as the
case may be, to take action in accordance with the provisions of the service
rules applicable to the said witness or where no such service rules exist, in
such manner as may be prescribed.”
11.10 The respondent No.2 – ICC has found that no sufficient
material exists as alleged by the petitioner and therefore, after
dealing with all these contentions raised by the petitioner before the
respondent No.2 – ICC, the Final Report has been prepared by the ICC
in detail. There is another underlying context in the present matter. In
allegations of sexual harassment, which are sensitive by their very
nature, one has to be careful that a reverse bias does not operate
against the involved male accused, since the statute itself provides
sufficient protection, a double layer of protection, if extended by
adjudicating forums to the complainant, might be counterproductive,
since excessive abuse of the provisions of the statute will create more
glass ceilings than they remove, creating fetters in the employment of
genuinely competent and hard-working employee. On perusal of the
above discussed facts and circumstances, the writ courts, in judicial
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review, have to be careful so as not to substitute their own opinions
for those of the adjudicating authorities unless there is any patent
unreasonableness, arbitrariness, mala fides, perversity and/or
illegality evident on the face of the record. I do not find any bias
operating in the mind of the ICC or reflected in the impugned
decision. Rather, the ICC complied with all principles of natural justice
by giving adequate opportunity of hearing and carefully assessing the
entire body of evidence before dismissing the complaint of the
petitioner. Thus, the principles of natural justice were adhered to and
there was no flaw whatsoever in the decision-making process
adopted. Hence, there is no scope of interference whatsoever with the
impugned decision of the ICC. I am in complete agreement with the
Final Report prepared by the respondent No.2 – ICC and I do not find
any merits in the present petition. Even on the ground of alternative
efficacious remedy available to the petitioner also, I am in complete
agreement with the preliminary objections raised by the respondents.
12. Accordingly, the present writ petition is hereby dismissed. Rule
is discharged. There shall be no order as to costs.
12.1 It is, however, made clear that this Court has not entered
into the merits of the impending criminal trial, if at all, initiated
against the concerned person against whom allegations of sexual
assault have been made by the petitioner. Even without joining such
person as a party to the proceedings, the petitioner has directly
prayed for relief before this Court, which is also to be noted herein.
12.2 It is observed that liberty is reserved in favour of the
petitioner to take recourse of remedy of appeal before the Appellate
Authority. It is also to be mentioned that if the petitioner prefers an
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appeal, the same shall be decided in accordance with law, after
affording ample opportunity of hearing to all the concerned parties,
without being influenced by this Order.
(HEMANT M. PRACHCHHAK,J)
Dolly
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