- 1 - NC: 2025:KHC:13225 WP No. 36854 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 36854 OF 2016 (L-RES) BETWEEN: MS USHARANI D/O LATE RAJANNA, AGED ABOUT 35 YEARS R/AT NO.S-1, BINDU ENCLAVE, VIDYARANYAPURA, BANGALORE-560 097. …PETITIONER (BY SMT. MAITREYI KRISHNAN, ADVOCATE FOR SRI. CLIFTON D ROZARIO.,ADVOCATE) AND: 1. THE STATE OF KARNATAKA REPRESENTED BY ITS THE ADDITIONAL LABOUR COMMISSIONER, APPELLATE TRIBUNAL KARMIKA BHAVAN BANNERUGHATTA ROAD, BENGALURU - 560 029. 2. EXL SERVICES PVT LTD EMBASSY (VRINDAVAN) TECH VILLAGE, TOWER 2D,PHASE-1, OUTER RING ROAD, SARGAPUR, DEVARABEESANAHALI, MARATHATHALLI, BENGALURU-560 087. Digitally signed by VANAMALA N Location: High Court of Karnataka - 2 - NC: 2025:KHC:13225 WP No. 36854 of 2016 3. ANAND ASHRIT S/O GOPALA ASHRIT AGED ABOUT 40 YEARS RESIDING AT NO.93, ASHRAYA NILAYAN GOPALA ASHRITHA, 1ST CROSS RAMANA GARDEN 2ND MAIN, CHAMUNDESHWARI LAYOUT VIDYARANYPURA, BENGALURU - 560 097. …RESPONDENTS (BY SMT. VAHEEDA, AGA FOR R1; SMT. NAYANATHARA B G, ADVOCATE FOR R2 SRI. M PARTHA FOR R3.,ADVOCATE FOR R3) THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO.DIRECT THE R-1 TO CONSIDER THE REPRESENTATION DATED 24.5.2016 VIDE ANNEX-C TO THE W.P; DIRECT THE R-1 TO DIRECT THE R-2 TO IMPLEMENT THE ORDER DATED 12.4.2016 VIDE ANNEX-B. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD ORAL ORDER The petitioner seeks directions to the first respondent - the Additional Labour Commissioner and the designated Appellate Authority under the Sexual Harassment of Women at Workplace [Prevention, Prohibition and Redressal] Act, 2013 [for - 3 - NC: 2025:KHC:13225 WP No. 36854 of 2016 short, 'the POSH Act'] to call upon the second respondent to take action against the third respondent as contemplated under Section 13[3] of the POSH Act and Rule 9 of the Sexual Harassment of Women at Workplace [Prevention, Prohibition and Redressal] Rules, 2013 [for short, 'the 2013 Rules'] and to pay compensation to the petitioner. 2. The second respondent has terminated the petitioner's services. The petitioner has filed a civil suit calling in question the second respondent's decision to terminate her services, and this suit is pending consideration. The petitioner contends that the third respondent has sexually harassed her while she was working with the second respondent in the United State of America, and that she has filed a complaint with the second respondent's senior officials in the month of July 2013 immediately on returning to India. The petitioner further contends that though immediate action is not taken, Internal - 4 - NC: 2025:KHC:13225 WP No. 36854 of 2016 Complaints Committee [ICC] is constituted and that this Committee unjustifiably has dismissed her complaint on 28.07.2014. 3. The petitioner has filed an appeal with the first respondent under Section 18 of the POSH Act calling in question the ICC's order dated 28.07.2014, and this appeal is registered in dispute No.05/2014- 15. The first respondent has issued notice of this appeal to the second and third respondents. The second respondent has contested the appeal, but the third respondent has remained absent. The first respondent, by its order dated 12.04.2016, has allowed the appeal opining as follows against the second and third respondents: 3.1 As against the third respondent: The third respondent has remained absent, and his absence is deliberate. The third respondent has not availed opportunity even before the ICC to establish his innocence. The reasons assigned by the ICC to - 5 - NC: 2025:KHC:13225 WP No. 36854 of 2016 dismiss the petitioner’s complaint cannot be accepted. The first respondent has observed that the second respondent has failed to take all measures as would be necessary to ensure a working woman is not harassed and that this respondent has also failed to take measures during the proceedings. 3.2 As against the second respondent: The second respondent has contested the appeal asserting that the petitioner could not have availed appellate remedy under Section 18 of the POSH Act without first exhausting the appellate remedy [that is an appeal to the Head of Corporate - HR] in terms of the second respondent's Policy on Prevention, Combating and Redressal of Sexual Harassment at Work [Policy on Prevention of Sexual Harassment at Work]1. The first respondent, referring to the email 1 Appeal: If the Complainant and/or the Respondent is aggrieved by the findings and/or the recommendations of the Internal Complaints Committee and/or the action taken on the report of the Internal Complaints Committee, he /she may within ninety days of receipt of - 6 - NC: 2025:KHC:13225 WP No. 36854 of 2016 addressed by the petitioner to Sri Mohan A.V.K. after the ICC's order dated 28.07.2014, has opined that this e-mail must be construed as 'an appeal under the aforesaid Policy because the second respondent has not disputed that the petitioner has indeed caused such email and that the second respondent has failed to bring on record the action that is taken. 3.3 The first respondent has concluded that the petitioner has established that the second respondent did not take any action to transfer her from the existing project to another project and that it did not restrict the third respondent from appraising her performance as required under Section 12(1) of the POSH Act and Rule 8 of the 2013 Rules. The first respondent has also concluded that the second respondent is liable to pay penalty under recommendations make an Appeal before the Head of Corporate HR. The Head shall decide the Appeal within a fortnight from the date of institution /receipt of the Appeal. - 7 - NC: 2025:KHC:13225 WP No. 36854 of 2016 Section 26(1)(c) of the POSH Act while observing that penal proceedings could be filed as contemplated under Section 27 (1) of the POSH Act. 4. After the first respondent's order dated 12.04.2016, the petitioner has filed the first information against the third respondent for the offence punishable under Section 354A of the Indian Penal Code [IPC]. The jurisdictional Police has filed charge sheet against the third respondent, but the learned jurisdictional Magistrate has allowed the third respondent's application under Section 239 of Cr.P.C. on 29.04.2016 discharging him. The petitioner has called in question such order in revision petition in CRL.RP No.25056/2016, and such criminal revision petition is allowed setting aside the order dated 29.04.2016. The third respondent, being aggrieved by such order in appeal, has approached this Court in Crl.P.No.791/2019 and this petition is pending consideration. - 8 - NC: 2025:KHC:13225 WP No. 36854 of 2016 The rival submissions on maintainability: 5. Ms. Nayantara B.G, the learned counsel for the second respondent, has argued against the maintainability of the writ petition asserting that the petitioner seeks implementation of an order passed under Section 18 of the POSH Act, but the petitioner has availed such remedy without exhausting the appellate remedy under the second respondent's Policy on Prevention of Sexual Harassment at Work, and therefore, the appeal itself is not maintainable. The learned counsel asserts if the petitioner could not have availed the remedy under Section 18 of the POSH Act without exhausting the remedy under the second respondent's Policy as aforesaid, the order in appeal dated 12.04.2016 will be non-est. 5.1 Ms. Maithreyi Krishnan, the learned counsel for the petitioner, rebuts this contention asserting that the petitioner has availed remedy - 9 - NC: 2025:KHC:13225 WP No. 36854 of 2016 under Section 18 of the POSH Act in filing the appeal with the first respondent, after filing an appeal under the second respondent's Policy on Prevention of Sexual Harassment at Work, as observed by the first respondent, and as such, this argument is tenuous. The learned counsel also contends that the second respondent has not called in question the first respondent's order, and if the second respondent has not called in question such order, it would not be open in law to this respondent to contend that the first respondent's order is non-est or that this writ petition is not maintainable. This Court’s conclusion on maintainability of the petition: 6. The first respondent has categorically opined, examining the second respondent's defense that the petitioner has not filed an appeal as is contemplated under its Policy, that the petitioner has written an e-mail to Sri Mohan A.V.K. on 31.07.2014, - 10 - NC: 2025:KHC:13225 WP No. 36854 of 2016 that the second respondent has not denied that the petitioner has caused such e-mail and that the second respondent has not brought on record the details of the action taken on such email. This Court is of the considered view that these circumstances show that the petitioner has availed remedy under the first respondent's Policy on Prevention of Sexual Harassment at Work before filing an appeal under Section 18 of the POSH Act with the first respondent. 6.1 If because of these circumstances, the assertion that the first respondent’s order dated 12.04.2016 is non-est [because the petitioner has not availed the appellate remedy under the second respondent's Policy on Prevention of Sexual Harassment at Work] is tenuous, this Court must next observe that the second respondent cannot raise any ground as against the manner in which the petitioner has availed her remedy when it has not called in question the first respondent's order. - 11 - NC: 2025:KHC:13225 WP No. 36854 of 2016 6.2 This Court must refer to the settled proposition that no order can be ignored altogether unless a finding is recorded that it is illegal, void or not in consonance with law and that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The Apex Court in Pune Municipal Corpn. v. State of Maharashtra2, has reiterated this proposition referring to what Prof. Wade states and citing Lord Radcliffe. The Apex Court’s observation3 reads as under: 36 It is well settled that no order can be ignored altogether unless a finding is recorded that it was illegal, void or not in consonance with law. As Prof. Wade states [ See Administrative Law by H.W.R. Wade, 6th Edn., p. 352.] “The principle must be equally true even where the ‘brand of invalidity’ is plainly visible: for 2 (2007) 5 SCC 211 3 This proposition is also reiterated in Tamil Nadu Pollution Control Board v. Sterlite Industrie (India) Limited and Others reported in (2019) 19 SCC 479 - 12 - NC: 2025:KHC:13225 WP No. 36854 of 2016 there also the order can effectively be resisted in law only by obtaining the decision of the court.” He further states [Ibid., pp. 352-53.] : “The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the ‘void’ order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another; and that it may be void against one person but valid against another.” 37. In Smith v. East Elloe Rural District Council [1956 AC 736 : (1956) 1 All ER 855 (HL)] AC at p. 769, Lord Radcliffe had an occasion to consider a similar argument (that the order was null and void). Negativing the contention, the Law Lord made the following oft-quoted observations: (All ER p. 871 G-H) “[T]his argument is, in reality, a play on the meaning of the word nullity. An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise - 13 - NC: 2025:KHC:13225 WP No. 36854 of 2016 upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.” On the merits of the petitioner’s request for directions. 7. Ms. Maithreyi Krishnan, the learned counsel for the petitioner, submits that this Court must direct the first respondent to give effect to the first respondent’s unchallenged order dated 12.04.2016 to call upon the second respondent to take action against the third respondent as contemplated under Section 13(3) of the POSH Act and also to start penal proceedings against the concerned from the second respondent as contemplated under Section 27 of the POSH Act. The learned counsel relies upon the first respondent's finding that the petitioner has established that she was sexually harassed by the third respondent and that the second respondent has not acted as required under Section 12 of the POSH Act and Rule 8 of 2013 Rules. The learned counsel canvasses that unless - 14 - NC: 2025:KHC:13225 WP No. 36854 of 2016 directions are issued in the light of the first respondent’s findings against the second and third respondents, the petitioner will be denied the benefit of the protection and compensation as envisaged under the POSH Act. 7.1 However, this Court is not persuaded to direct the first respondent to issue any directions to the second respondent either to pay compensation to the petitioner or to take any other action for prosecution of the second respondent's officials for the following reasons. [i] The first respondent has indeed opined that the second respondent has not acted in terms of Section 12 of the POSH Act or under the Rule 8 of the 2013 Rules. Under these two provisions, when a request is made by an aggrieved woman, during the pendency of an inquiry, the Internal Committee may recommend transfer of the third respondent or the aggrieved woman or grant leave to the aggrieved - 15 - NC: 2025:KHC:13225 WP No. 36854 of 2016 woman or grant any other benefit that could be permissible. The petitioner has not pursued her grievance in this regard during the pendency of her complaint with the ICC. [ii] If an Internal Committee has concluded that the allegation by the aggrieved woman is proved, it shall [as envisaged Section 134 of the POSH Act] 4 (1) On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties. (2) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter. (3) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be— (i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed; - 16 - NC: 2025:KHC:13225 WP No. 36854 of 2016 recommend action against the employer for misconduct under the applicable service Rules, and in addition, the Internal Committee shall recommend deduction from the third respondent's salary or wage as it considers appropriate to be paid as compensation to the aggrieved woman. [iii] In the present case, if the ICC has dismissed the petitioner's complaint and the first respondent is persuaded to accept such a decision is (ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section 15: Provide that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman: Provided further that in case the respondent fails to pay the sum referred to in clause (ii), the Internal Committee or as, the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer. (4) The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him. - 17 - NC: 2025:KHC:13225 WP No. 36854 of 2016 wrong, the petitioner should have sought for consequential relief in this regard in such proceedings. If the first respondent has not either considered or granted the relief despite pleadings and a request, the petitioner should have taken appropriate action against such failure. The petitioner having not taken any action cannot seek the same relief by implementation of the first respondent's order. 7.2 This Court must next observe that it is undisputed that the third respondent has left the service with the second respondent many years back, and that the second respondent has settled all his dues. If after all these circumstances, and the lapse of time, if there is any direction to the first respondent to call upon the second respondent to take against the third respondent for proceeding on misconduct or for damages, it would be an exercise in futility. Hence, the following:- - 18 - NC: 2025:KHC:13225 WP No. 36854 of 2016 ORDER The petition is rejected without interference, but this Court’s observations shall not prejudice the petitioner either in the pending criminal proceedings as against the third respondent or in the pending suit which is filed by her calling in the question the second respondent's decision to remove her from service. Sd/- (B M SHYAM PRASAD) JUDGE SA* ct:sr