The Supreme Court has clarified that an appeal by the Indian Navy Officer (appellant) against the recommendations of an Internal Complaints Committee under Section 18 of the POSH Act is maintainable before the Armed Forces Tribunal (AFT). The Court said that when a show cause notice is issued based on the findings of an ICC report, and both the report and the notice are challenged, the tribunal cannot dismiss the challenge as premature by treating it as a mere challenge to the notice.
The Apex Court emphasised over the obligation of the Armed Forces Tribunal to adjudicate the appeal against the foundational ICC report on its merits, as the validity of the show cause notice is contingent upon the correctness of the said report. Accordingly, the Court quashed the orders of the AFT and the Delhi High Court and remanded the matter back to the AFT for fresh adjudication of the original application as an appeal under Section 18 of the POSH Act.
A Two-Judge Bench of Justice B.V. Nagarathna and Justice Ujjal Bhuyan observed that the two-fold challenge by the Commander in the Indian Navy (appellant), assailing both the ICC report and the consequential show cause notice, was not perceived in its proper perspective by the lower forums. The Bench noted that the Tribunal and High Court incorrectly proceeded on the basis that only a preliminary show cause notice was in issue, failing to recognize that the notice was entirely premised on the ICC’s report and recommendations.
The show cause notice was not merely a preliminary notice but was directly relatable to the ICC report, which was the subject matter of the appeal, clarified the Bench, while observing that the High Court was not right in holding that the appellant had no right of appeal under Section 18 of the POSH Act.
The Bench noted that Section 18 of the POSH Act is a specific provision under a special enactment that provides a right of appeal against adverse ICC recommendations, which can be read with Section 14 of the AFT Act, 2007. The Bench also contrasted the general nature of Regulation 216 of the Navy Regulations (dealing with misconduct) with the specific right of appeal granted under the POSH Act.
Briefly, the appellant, a Commander in the Indian Navy, was accused of sexual harassment by a Principal Medical Officer, and consequently, an Internal Complaints Committee (ICC) was constituted under the POSH Act, 2013, which conducted an inquiry and submitted a report recommending that appropriate action be initiated against the appellant.
Based on this report, a show cause notice was issued to the appellant, proposing the termination of his service under Regulation 216 of the Regulations for the Navy Part-II and Section 15(2) of the Navy Act, 1957. The appellant therefore approached the Armed Forces Tribunal (AFT), seeking to quash the notices.
The AFT however, dismissed the application, reasoning that it was premature to interfere at the stage of a show cause notice and that the appellant had the liberty to submit a reply. The appellant then challenged the AFT’s order before the High Court of Delhi, which also dismissed the petition observing that the right of appeal against ICC recommendations under Section 18 of the POSH Act was not available to the appellant in the manner sought.
Appearances:
Senior Advocate Rajshekhar Rao, AORs Akshay Bhandari and Yadav Narender Singh, along with Advocates Gauri Puri and Harshil Wason, for the Appellant
ASG Vikramjeet Banerjee, Senior Advocates Archna Pathak Dave and Nachiketa Joshi, AORs Hrishikesh Baruah, Mukesh Kumar Maroria, and Arvind Kumar Sharma, along with Advocates Shubhendu Anand, Rajan Kumar Chourasia, Vatsal Joshi, Ishaan Sharma, Aditya Kashyap, Santosh Kumar, P.V. Yogeswaran, Roopam Sharma, Venkat Mani Tripathi, Pragya Agarwal, Utkarsh Dwivedi, and Yashaswy Ghosh, for the Respondent
