Petitioner speech

The counsel seeks permission to approach the dias. Much obliged.

Greetings to the hon’ble bench.
May it please thee court, this is counsel 2 on behalf of petitioners who rises to continue
submissions on issue 3 and 4.
Your lordship/ladyship, for the third issue which is Whether the hotel Majorca D was under
an obligation to initiate a police complaint, the petitioner humbly submits that the hotel was
indeed under an obligation to initiate police complaint against Rajneesh. The petitioner submits
two-pronged arguments in this regard- firstly, it is the Duty of the Internal Complaint
Committee to Initiate the Police Compliant Under Section 11(1) Of Posh Act and secondly,
it is the duty of the employer to initiate the police complaint as per the purposive
interpretation of section 19(h).
"purposive interpretation" is based on the understanding that the court is supposed to attach
that meaning to the provisions which serve the "purpose" behind such a provision. The basic
approach is to ascertain what is it designed to accomplish? To put it otherwise, by interpretative
process the court is supposed to realise the goal that the legal text is designed to realise. The
statutory interpretation of a provision is never static but is always dynamic. Shailesh
dhairyawan vs Mohan Balkrishna Lulla, sc page number of compendium
In relation to the first submission, the counsel humbly submits that it is the duty of the icc to
initiate police action under sec 11(1) of posh act. (PAGE 108) Sec 11(1) states that “Subject
to the provisions of section 10, the Internal Committee or the Local Committee, as the case
may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint
in accordance with the provisions of the service rules applicable to the respondent and where
no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the
Local Committee shall, if prima facie case exist, forward the complaint to the police, within a
period of seven days for registering the case under section 509 of the Indian Penal Code (45 of
1860), and any other relevant provisions of the said Code where applicable.” If a prima facie
case exists against the respondent, the icc can forward the complaint to the police.
Under section 4 of the POSH Act every employer is required to constitute Internal Complaints
Committee [ICC] to hear and redress complaints pertaining to sexual harassment and section 5
mandates the District Officer shall constitute Local Complaints Committee [LCC] to receive
complaints of sexual harassment from establishments where the ICC has not been constituted
or in cases where the complaint is to be made against the employer himself. Earlier proved
respondent is an employee.
In the instant case, a prima facie case of sexual harassment exists without any doubt. (refer to
pg 102) The PoSH Act under sec 2(n) defines sexual harassment to include unwelcome acts
such as physical contact and sexual advances, a demand or request for sexual favours,
making sexually coloured remarks, showing pornography, and any other unwelcome
physical, verbal, or non-verbal conduct of a sexual nature. The same was reiterated by the
Supreme Court in Vishakha and Ors vs State of Rajasthan and Ors. 3 JUDGES SC which
is the landmark judgement for posh act. (refer to moot prop para 10) it is very clear that
Rajneesh tried making unwanted physical advances towards the petitioner such as trying to
come closer and touch her inappropriately without her consent. Again in para 11, during the
taxi ride to pokhra, him trying to invade her personal space and keep his head on her lap even
after her pushing him away, constitutes sexual harassment. The Petitioner felt uncomfortable
with Rajneesh's behavior indicating that his actions were unwelcome and not consensual. No
reason to prove whether workplace or not because the intent behind filing police complaint is
to still avail an alternate remedy under the ipc if workplace is not established. Although in the
current case, petitioner was harassed during the course of employment i.e. in the taxi.
Additionally, para 12 Rajneesh's booking of a luxury suite under their names without the
petitioner's consent and his disrespectful and derogatory behavior towards petitioner during
their journey back to Kathmandu further support the allegations of harassment and humiliation.
The overarching objective of Section 11(1) of the POSH Act is to initiate necessary legal action
when there is a prima facie case of sexual harassment in the workplace. The motive behind
triggering police involvement upon the establishment of such highlights the seriousness with
which instances of sexual harassment are treated under the law. Taking such an action makes it
clear that the petitioner was genuinely affected by it and seeks justice. Victims of sexual
harassment generally are too affected and their minds are so clouded by the incident itself that
they need support of others to help them meet the ends of justice.
Page no. 25 of memo, para 45, in Nandalal Baidya V. The State of Tripura - prima facie
case constituted so accused convicted under posh and further actions were taken.
Why it is needed to file police complaint if icc has already dealt with it? As my co-counsel
said, icc not in accordance with law, decision not proper, no legal relevance and prima facie
case of sexual harassment. Ruchika kedia vs icc..
Furthermore, it was clearly stated in the case of A. Manimekalan V. The Registrar and Ors.
(facts likhlo) (MDHC)1 judge that if a prima facie case exists regarding alleged sexual
harassment, the Internal Complaint Committee (ICC) has the authority to refer the case to the
police under Section 11(1) POSH Act).
Why should we hear mhc? Holds pursuasive value, and the judgements are given by specialized
and well-versed judges like your lordship/ladyship, therefore it cannot be disregarded.
if the bench may please refer to page .., this is an official document released by the ministry
of women and child development on frequently asked questions related to the posh act, on
page.. point 36 clearly says that the icc has the authority to forward the police complaint under
section 11(1). Hence, such obligation of the icc is mandatory.
(keep on asking “is the bench following?”, “is the bench with the counsel?”)
Indeed, your lordship/ certainly not your lordship.
Moving forward with the second submission, the counsel humbly pleads that acc to the
purposive interpretation of section 19(h) of POSH Act, it is the duty of icc to initiate police
action against the perpetrator. (refer to Pg 110) Section 19(h) states that, ‘Every Employer
shall cause to initiate action, under the Indian Penal Code or any other law for the time being
in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is
not an employee, in the workplace at which the incident of sexual harassment took place’. The
counsel submits that SC in the case of Shailesh Dhairyawan v. Mohan Balkrishna Lulla (pg
64 para E) held that “the rule of purposive construction has replaced the rule of plain meaning
of the statute as the golden rule of interpretation of statutes.” The High Court of Delhi in the
case of (page 36 cmp para 17) Dr. Sohail Malik v. UoI & Anr. 2j relied on the rule of
Purposive Interpretation of the POSH Act. Such interp is used particularly in cases where the
literal interpretation of a provision does not serve the purpose of the act or leads to absurdity.
This meant that interpretations of the act should not frustrate its objectives or lead to unjust
outcomes. The Delhi HC noted that a strict interpretation of the POSH Act as proposed by the
respondent hits at the root, ethos and philosophy of the POSH Act and would have the effect
of depriving the complainant of any remedy against the respondent solely by reason of the
employer being under the disciplinary control of another employer. Thus, the above section
which prescribes the essential duties of an employer, after interpretation, keeping in mind the
nature of posh act as an ameliorative social welfare legislation for women mandates the
employer to initiate police action whether or not the woman explicitly expressed so to provide
some kind of relief. Also, respondent had not even constituted icc accordingly, the least they
could’ve done was file a police complaint.
Therefore, the petitioner concludes the third issue and pleads that the icc in the instant case
should have initiated police complaint as envisaged under the Posh Act.
If the bench is satisfied with the counsel, the counsel seeks permission to move on to the fourth
issue.
Your lordship, for the fourth issue which is whether the statements made by respondent that is
mr rajneesh during the hearing in front of the committee constitute criminal defamation under
section 499 of ipc, (pg ) the petitioner humbly submits that yes, the respondent is liable under
section 499 of ipc that is criminal defamation. The petitioner submits the following arguments
in this regard- firstly, there was publication of the statement; 2) The Respondent had intention,
knowledge or reason to believe that the imputation was defamatory; 3) Statement is not
protected under any exception.
In relation to the first submission, the petitioner submits that there was a publication of the
statement which is one of the essential ingredients of the offence under Section 499 IPC.
Defamatory material is published when it is communicated by someone other than the person
it defames. In the present scenario, the imputation made by the respondent was in front of the
committee members which did amount to publication. Furthermore, in Future Generali India
Life Insurance Company Limited v. Partha ..1j ( memo )held that any such matter stated in
the written statement or in any legal proceedings, amounts to publication and as such in the
present case the prerequisite to attract the offence under Section 499 of the IPC. Internal
Complaints Committee proceedings are equivalent to legal proceedings by the fact of it being
a statutory body operating within a legal framework, having legal enforceability and power to
penalise individuals, thus amounting to publication.
Sec 11 says icc behaves as a civil court.
Moving forward with the second submission, it is humbly submitted that the Supreme Court
held in the landmark judgement of Subramaniam Swamy v. Union of India (pg 70 para 168)
that “…mens rea is a condition precedent to constitute the said offence. The complainant has
to show that the accused had intended or known or had reason to believe that the imputation
made by him would harm the reputation of the complainant.” (refer to para 14 and 15 of the
moot prop) The hostile conduct of the Respondent towards the Petitioner is sufficient evidence
to depict his state of mind preceding the statement spoken by him during the hearing in front
of the committee. The taxi-driver was a witness to the behaviour of Respondent such as the
inappropriate advances made by him, aggression and the foul language used by him as well as
the petitioner’s objection to his conduct. Implying that the dinners between them were
“intimate” and not “professionaly required” throws negative light on the character of the
petitioner. ‘intimate’ is generally associated with having a very close or sexual relationship.
This portrays her as a person who falsely accused the respondent. Also, stating such in front of
the committee member who are her colleagues must require common prudence which the
respondent failed to exercise. The dinners and outings were initiated by the respondent himself
and the petitioner attended them under social obligation. this establishes the mala fide intent of
the respondent.
Furthermore, the counsel humbly pleads that the protection of reputation is a fundamental right.
(2007) 3 SCC 587 State of Maharashtra vs Public Concern for Governance trust and or
“reputation of an individual is an important part of one's life - One has right to have and
preserve his reputation and also to protect it.”
In Subramanian Swamy v. UOI (pg 69), it was held that “While in a democracy an individual
has a right to criticise and dissent, but his right under Art. 19(1)(a) All citizens shall have the
right to freedom of speech and expression. is not absolute and he cannot defame another
person as that would offend victim's fundamental right to reputation which is a facet of Art. 21
of the Constitution (No person shall be deprived of his life or personal liberty except according
to procedure established by law.)-One fundamental right cannot be given a higher status in
comparison to the other and what is required is proper balancing of the two” “reasonable
restrictions???” public order, decency or morality
In the case of Jeffrey J. Diermeier v. State of West Bengal, (pg 76 ) SC it was held, “it would
be sufficient to show that the accused intended or knew or had reason to believe that the
imputation made by him would harm the reputation of the complainant, irrespective of whether
the complainant actually suffered directly or indirectly from the imputation alleged.” (refer
moot para 18 for the statement made by him) Unwarranted speculation about a person's
personal life, particularly concerning intimacy or romantic involvement, can lead to social
stigma, embarrassment, and personal distress which the Petitioner clearly felt. As part of
professional demeanor, the Petitioner acknowledging the importance of fostering good rapport
with colleagues, decided to engage in social activities after office hours. Therefore, her
attendance at dinners should not be misconstrued as anything other than a reflection of her
commitment to fostering a collaborative work environment.
Moving forward to the third and last submission, the counsel pleads that the imputation made
by the respondent were not protected by any exceptions under sec 499 of ipc. The Court in
Subramanian Swamy v. Union of India held that “186. One cannot be unmindful that right
to freedom of speech and expression is a highly valued and cherished right but the Constitution
conceives of reasonable restriction. In that context criminal defamation which is in existence
in the form of Sections 499 and 500 IPC is not a restriction on free speech that can be
characterized as disproportionate. Right to free speech cannot mean that a citizen can defame
the other.” The respondent, purportedly exercising their fundamental right, is precluded from
disseminating misinformation or making defamatory assertions regarding any individual,
unless such actions align with the specific exceptions delineated within Section 499 of the
Indian Penal Code. In this instance, the respondent does not benefit from any such exception,
thus precluding exoneration from liability.
The petitioner submits that the first exception provides that first, the information should
compulsorily be true and second, the information should be of a kind that it benefits the public
to escape liability. Petitioner's behaviour suggests discomfort and reluctance towards
Respondent's advances. These actions contradict the notion that she enjoyed his company or
willingly engaged in intimate activities with him. The statement made by Respondent during
the hearing seems strategically placed to deflect from the allegations of sexual harassment and
humiliation raised against him by Petitioner and aims to portray her as a willing participant in
their interactions. Therefore, the statement was false.
in Vijay Jawaharlalji Darda and Ors v. State of Maharashtra and Anr, 1J (pg ) it was held
“Truth of an allegation does not permit a justification under first exception unless it is proved
to be in public good. The question whether or not it was for public good is a question of fact
which needs to be proved like any other relevant fact.” The public good typically involves
actions or statements that contribute positively to society or uphold principles of justice,
fairness, and truth. In this case, Respondent's statement does not appear to align with these
principles. Instead, it may be viewed as an attempt to manipulate the narrative and evade
accountability for his alleged misconduct.
the petitioner humbly submits that the statement is not protected under ninth or any exception.
The ninth exception states that it is not defamation to make an imputation on the character of
another provided that the imputation be made in good faith for the protection of the interest of
the person making it, or of any other person, or for the public good.” Good faith" has been
defined under Section 52, I.P.C. and it lays down that, “Nothing is said to be done or believed
in "good faith" which is done or believed without due care and attention.” It was stated by the
Court in Dogar Singh and Anr. v. Shobha Gupta and Anr. 1j (pg 84) that, “the question
whether the accused acted in good faith, would depend on the facts and circumstances of each
case – the nature of the imputation made, the circumstances under which it was made, the status
of the person making the imputation, the existence or otherwise of malice in his mind when he
made the imputation and whether he acted with due care and attention and was satisfied as to
the truth of the imputation or the relevant considerations in deciding the question”. Considering
all the above factors and the failure to satisfy the truth of the imputation, it can be reasonably
concluded that Respondent did not make the statement in good faith in front of the committee.
Hence, the respondent is liable under sec 499 ipc.

If the bench is satisfied with the arguments presented by the counsel, may the counsel proceed
with the prayer.
THEREFORE, in the light of the questions presented, arguments advanced, and authorities
cited, Petitioner request this Hon'ble Court to find, adjudge and declare that:
• The writ petition is maintainable under Article 226 of the Constitution of India.
• The Internal Complaint Committee was not constituted in accordance with the law.
• Hotel Majorca D was under an obligation to report the incident to initiate the police action,
therefore, the petitioner seeks the re constitution of the committee and holds the hotel liable
under section 26 of the posh act.
• The statements made by Respondent during hearing in front of the committee constitute
criminal defamation under Section 499 of IPC.
And may pass any other order in favour of the Petitioner that it may deem fit in the interest of
justice, equity and good conscience.
For this Act of kindness, the appellant shall duty bound forever pray.
All of which is most humbly and respectfully submitted. May it please the court.
Justice, equity and good conscience have generally been interpreted as English laws and rules
that are applied when any written law is not applicable to a legal matter. Justice and equity in
this principle surmises the equal, unbiased distribution of justice in a society, but also it may
express a sense of ideal, an ultimate goal, or at least a direction that law must follow. Good
conscience means fairness as applied to each individual case after considering the totality of
the circumstances. The general principle of equity and justice offers a better cohesion to other
principles of law.