MOOT 2022

Law Centre 1

Before The Hon’ble High Court of Delhi

Priya

(Petitioner)

Vs

XYZ ltd.

(Respondent)

FOR CHALLENGING THE PETITION FILED UNDER:

PREVENTION OF SEXUAL HARASSMENT OF WOMEN AT WORKPLACE

(PROHIBITION, PREVENTION AND REDRESSAL) ACT, 2013

MEMORIAL ON BEHALF OF THE RESPONDENT

COUNSEL APPEARING ON BEHALF OF RESPONDENT

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 Table of Contents

Contents

INDEX OF AUTHORITIES 2

STATEMENT OF JURISDICTION 3

STATEMENT OF FACTS 5

STATEMENT OF ISSUES 9

SUMMARY OF ARGUMENTS 10

ARGUMENTS ADVANCED 15

PRAYER 17

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 Index of Authorities

TABLE OF CASES:

1. UNION OF INDIA V. R. THIYAGARAJAN (2020) 5 SCC 201

2. SYED YAKOOB VS KS RADHAKRISHNAN & ORS. 1964 AIR 477
3. VISHAKA V. STATE OF RAJASTHAN AIR 1997 SCC 3011
4.  P V. A & ORS. (POSH CONFIDENTIALITY GUIDELINES-SUIT NO. 142 OF 2021)
(BOMBAY HC)
5. SRI SUBRATA KUMAR CHOUDHURY VS STATE BANK OF INDIA & ORS 4221
(542) CIT 464
6. MEDHA KOTWAL LELE VS UOI (2013) 1 SCC 297
7. SHITAL PRASAD SHARMA V. STATE OF RAJASTHAN AND ORS., 2018 SCC
RAJ 1676 (RAJASTHAN HC)

WEBSITES:

1. https://blog.ipleaders.in/
2. http://www.manupatra.co.in/AdvancedLegalSearch.aspx
3. http://www.scconline.com
4. http://www.casemine.com
5. http://www.Indiankanoon.com

STATUTES:

1. PREVENTION OF SEXUAL HARASSMENT OF WOMEN AT WORKPLACE ACT

(PROHIBITION, PREVENTION AND REDRESSAL) ACT, 2013
2. CODE OF CIVIL PROCEDURE, 1908

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 Statement of Jurisdiction

THE PETITION FILED BY THE PETITIONER IS TO QUESTION THE FUNCTIONING OF

THE INTERNAL COMPLAINTS COMMITTEE (FORMED UNDER THE POSH ACT)
CONSTITUTED IN MUMBAI.

THUS, THE HON’BLE COURT DO NOT HAVE THE JURISDICTION TO HEAR AND
ADJUDICATE ON THE PETITION FILED BY THE PETITIONER BY THE PURVIEW OF
SECTION 11 (3) OF P.O.S.H. ACT 2013, READ WITH SECTION 96(1) & 106 OF CODE OF
CIVIL PROCEDURE 1908 AND RELEVANT JUDGEMENTS OF THE HON’BLE
SUPREME COURT IN REGARD TO JURISDICTIONS OF THE VARIOUS HON’BLE HIGH
COURTS IN INDIA.

SECTION 11 (3) OF P.O.S.H. ACT 2013: For the purpose of making an inquiry under sub-
section (1), the Internal Committee or the Local Committee, as the case may be, shall have the
same powers as are vested in a civil court the Code of Civil Procedure, 1908 (5 of 1908) when
trying a suit in respect of the following matters, namely:— (a) summoning and enforcing the
attendance of any person and examining him on oath; (b) requiring the discovery and production
of documents; and (c) any other matter which may be prescribed.

SECTION 96(1) OF CODE OF CIVIL PROCEDURE 1908: Appeal from original decree.—(1)
Save where otherwise expressly provided in the body of this Code or by any other law for the
time being in force, an appeal shall lie from every decree passed by any Court exercising
original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.

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SECTION 106 OF CODE OF CIVIL PROCEDURE 1908: What Courts to hear appeals.—
Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie
from the decree in the suit in which such order was made, or where such order is made by a
Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.

Further, the Hon’ble Supreme Court has held in its judgement that “The High Court exercise its
jurisdiction only over State(s) of which it is the High Court. has no jurisdiction for the rest of the
country. Matters like the present may be pending in various parts of the country…The High
Court of Madras could not have passed such order. It has virtually usurped the jurisdiction of
other High Courts in the country…

…The High Court may be justified in passing such an order when it only affects the employees of
the State falling within its jurisdiction but, in our opinion, it could not have passed such an order
in the case of employees where pan India repercussions would be involved.”1

In another case , the Hon’ble supreme court similarly held that “A writ of certiorari is issued for
correcting errors of jurisdiction committed by courts or tribunals, in cases where they exceed
their jurisdiction or fail to exercise it or exercise it illegally or improperly, i.e. where an order is
passed without hearing the party sought to be affected by it or where the procedure adopted is
opposed to principles of natural justice.

The jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it, the court is
not entitled to act as a court of appeal. That necessarily means that the findings of fact arrived at
by the inferior court or tribunal are binding”2

1 UNION OF INDIA V. R. THIYAGARAJAN (2020) 5 SCC 201

2 SYED YAKOOB VS K.S. RADHAKRISHNAN & ORS. 1964 AIR 477

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 Statement of Facts

1) Priya was working in a Company XYZ Ltd. After promotion in May, 2009, as Data
Manager she was transferred from Chennai to Ahmadabad office of the Company.

2) Her new boss Arjun, the Senior Data Manager seemed to be impressed by her ways of
working and ideas and soon became her mentor and granted her incentives for her
performance and recommended appraisals.

3) With time Priya felt that Arjun was being possessive about her and thought that he grew
furious if she talked to any other colleague except him. On 13th October, 2009, after a
meeting when Priya went to Ravi’s room to discuss work related modalities, Arjun
shouted at Priya and said, “Your focus on work is declining and you relish going to
Ravi’s Office, every now and then … Now you see what I do to you”. However, After
few days to this incident, on the occasion of Diwali celebration, he complimented her
when she wore a sari to match the ethnic theme of the celebration. Despite allegedly
being uncomfortable with his behavior, Priya preferred to go silent on the matter.

4) After a few days, owing to her declining work productivity and efficiency, Priya’s work
profile was lowered to that of a Data Analyst on the basis of Arjun’s recommendations.
Her assigned responsibilities were switched and she was assigned with some additional
workload which is very usual in the dynamic field of data science. When inquired she
was told that all this was done due to the Company’s business requirements. Her
colleagues in the office also had a negative conception about her and there was a negative
word around, about her work performance and efficiency, further corroborating the
Arjun’s decision in lowering her job profile.

5) Her desk and workstation were moved to a corner, in the area proximate to the data
record room as she worked as a data analyst. But it was somehow also adjacent to the
men’s restroom.

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6) Priya, on being disturbed by this alleged hostile work environment, complained to the
Disciplinary Authority on 15th November, 2009. But authorities dodnt deemed fit to
intervene in this matter. Though it is to be noted that her complaint was not a written one.

7) Priya then requested for a transfer from the supervision of Arjun as she pleaded that her
work productivity was deteriorating owing to such non conducive environment and
alleged Arjun’s harassing behavior. Her request was denied on the ground of company
policies wherein the transfers are allowed only after completing one year service on the
current position.

8) Petitioner applied for 40 days leave quoting negative work environment taking a toll on
her physical and psychological health in her leave application. When the leave was not
sanctioned, on 1st December 2009, she proceeded on unauthorized leave without pay.

9) While on leave, after a month later on 01.01.2010, Priya made an official complaint of
Workplace Harassment in writing to the Disciplinary Authority. On her complaint, a
local committee was constituted on 15.01.2010 in Ahmadabad under sec () of POSH
ACT to investigate Priya’s complaint of Workplace Harassment.

10) During the preliminary hearing, the committee arrived on conclusion that the grievance
matter is of work nature and the acts done by Arjun were entirely in business capacity to
improve upon Priya’s dismal work productivity. The report was submitted, accordingly.

11) Priya raised an appeal on 31.01.2010 against it. She Pleaded her unawareness of the
provisions under the Prevention of Sexual Harassment (Prohibition, Prevention and
Redressal) Act, 2013(hereinafter referred to as POSH Act) at the time of raising of the
complaint, she urged that her complaint of Workplace Harassment to be examined on
merits by the Common Internal Complaints Committee (hereinafter referred to as ICC) of
the Company constituted at Mumbai under POSH Act. However, The Company pleaded
that Priya’s ignorance cannot be treated as valid ground to appeal. However ICC took

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 cognizance of the Priya’s complaint and issued Notice to Priya and Arjun for
investigation. During the first ICC preliminary meeting, a settlement was reached u/s 10
of the POSH Act between Priya and Arjun upon latter’s unconditional apology to Priya
and his assurance that she would get all possible cooperation in work in his team in
future. Thus, in good faith, the complaint was subsequently withdrawn.

12) After sometime, She was subsequently transferred to a different location, Delhi. Within
few days of joining her new office at Delhi, Priya alleged that she was subjected to
rumour-mongering, gossips, targeting and character assassination at the hands of her
colleagues. She felt she was being assigned profiles out of line with her assigned role
with regular reprimanding by her new Boss, Diwakar, to work in strict accordance with
his instructions failure of which shall amount to misconduct.

13) She alleged that Diwakar would frequently engage in telephonic conversations with
Arjun, the nature of which was professional communication as required in an
organizational set-up of any big organization.

14) One day, while stalking Diwakar, Priya overheard him telling Arjun in their personal
telephonic conversation on one such call, “The girl actually is very pretty and can make
any man go crazy”. However no mention of name of the girl being referred to in the call
is made by the petitioner.

15) After some time, the company transferred her to a different location in Haryana because
of dismal work performance and disciplinary misconduct.

16) Against this transfer, She alleged of existence of a strong nexus was being formed against
her and had great suspicion that Arjun, living in Mumbai, was complicit in her transfer
from Delhi to Haryana . She eventually raised a grievance to the common ICC at Mumbai
to reopen her complaint against Arjun.

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17) Her request was declined by the ICC on the premise that the fact finding inquiry had
already been conducted in her previous matter. Further, she said that owing to a strong
nexus against her, she would disclose the complete facts of the case only upon inception
of the ICC proceedings to prevent any further miscarriage of justice.

18) A Final Order No-1234 was passed by ICC and arrived to a conclusion that the
complainant failed to furnish complete facts of the complaint. That due fact finding
inquiry was already conducted by ICC on her previous complaint and that complaint was
closed on the instance of complainant only. Thus, the matter cannot be reopened. Further,
her grievance as raised now appearing to be of work nature only does not fall under the
purview of the POSH Act, 2013 and with this the ICC disposed the complaint requiring
no further investigation under POSH Act.

19) ICC further held the view that Priya had intentionally diverted a case of workplace
pressure to provisions under Sexual Harassment to make her ends meet and hence she
should be liable under POSH Act for making a false complaint.

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 Statement of Issues

1. WHETHER THE PETITIONER WAS SEXUALLY HARASSED DURING THE

COURSE OF HER EMPLOYMENT AT HER WORKPLACE?

2. WHETHER THE SEXUAL HARASSMENT OCCURRED BY:

2.1 PREFERENTIAL TREATMENT BY MENTOR IN COURSE OF
EMPLOYMENT?
2.2 INCREASED WORKLOAD OF THE PETITIONER?
2.3 MOVING WORKSTATION NEAR THE DATA RECORD ROOM?
2.4 EXISTENCE OF A NEXUS BETWEEN DIWAKAR AND ARJUN AS
ALLEGED BY PRIYA?

3. WHETHER SILENCE ON PART OF PETITIONER ON RECEIPT OF

PREFERENTIAL TREATMENT AND FAVOURISM BY THE MENTOR
AMOUNTS TO HER ACCEPTANCE TO SUCH TREATMENT?

4. WHETHER THE FORMATION AND FUNCTIONING OF INTERNAL

COMPLAINTS COMMITTEE WAS IN ACCORDANCE WITH THE MANNER
PRESCRIBED IN THE STATUTE?

5. CAN A COMPLAINT SETTLED UNDER SEC10(4) OF THE POSH ACT BE

REOPENED BY THE COMMITTEE DESPITE THE FAILURE ON PART OF
THE PETITIONER TO FURNISH FULL FACTS OF THE ISSUE?

6. CAN THE COMPANY DENY TO DISCLOSE THE NAME OF MEMBERS

CONSTITUTING THE ICC AND OTHER FACTS RELATING TO

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 FUNCTIONING OF THE COMMITTEE ON ACCOUNT OF
CONFIDENTIALITY?

Summary of Arguments

1. WHETHER THE PETITIONER WAS SEXUALLY HARASSED DURING THE

COURSE OF HER EMPLOYMENT AT HER WORKPLACE?

As per section 2(n) of the POSH Act, the sexual harassment requires presence of either of
the 4 elements - physical contact and advances; or a demand or request for sexual
favours; or making sexually coloured remarks; or showing pornography; or any other
unwelcome physical, verbal or non-verbal conduct of sexual nature. In the present case,
none of the above elements are present in the facts of the case.

2. WHETHER THE SEXUAL HARASSMENT OCCURRED BY:

2.1 PREFERENTIAL TREATMENT BY MENTOR IN COURSE OF

EMPLOYMENT?
Section 3 of the Act elucidates the point of causing sexual harassment by way of
implicit or explicit preferential treatment to the lady in the course of her employment.

But as per the facts of the present case, the preferential treatment alleged to be
initially received by the petitioner from her boss Arjun who was impressed not by
her looks or other sexual considerations but by her ideas and ways of work.

Rewarding the employee for their ideas , ways of working and their efficiency is the
practice in all the private sector organizations, despite the fact that employee be a
male or a female.

2.2 INCREASED WORKLOAD OF THE PETITIONER?

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 Petitioner alleged increased workload on her subjected her to detrimental treatment
by the boss Arjun to bring the case under the purview of section 3 (2) (ii) of the Act.
But the inference from fact no. 3 also can’t be denied that her work performance was
deteriorating and because of her declining productivity, her boss arjun had a bad word
with her.
However, this act on part of Arjun was not intentional or personal at all because later,
on occasion of diwali celebration, they had a good conversation in an informal setup.

2.3 MOVING WORKSTATION NEAR THE DATA RECORD ROOM?

Petitioner alleged moving workstation near the Men’s restroom created an hostile
environment for her under section 3 (2) (iv) or caused threat to her safety under
section 3 (2) (v).

But petitioner remained silent on the fact that workstation was moved near the Data
Record Room. And the alleged creation hostile environment or threat to her safety
was not the case as all this was done to improve her productivity and provide her
convenience because her job of being a data manager required her to frequently visit
the Data Record Room

2.4 EXISTENCE OF A NEXUS BETWEEN DIWAKAR AND ARJUN AS

ALLEGED BY PRIYA?
Her previous Boss as well as her current boss i.e. Arjun and Diwakar were Senior
Data Manager. Their organizational setup requires them to coordinate with each other
frequently for smooth running of the organization. Their frequent conversations,
being formal in nature, is being frivolously alleged as existence of a nexus between
the two.
Further , the petitioner overheard Diwakar having a personal conversation with Arjun
in which Diwakar was saying “this girl can make any man go crazy”. However, no
mention of the name is made by the petitioner as to whom they were talking about or
did they made any reference to the petitioner?

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 This further weakens the case of the petitioner and raises serious concerns about the
genuineness of the allegations made by the petitioner.

3. WHETHER SILENCE ON PART OF PETITIONER ON RECEIPT OF

PREFERENTIAL TREATMENT AND FAVOURISM BY THE MENTOR
AMOUNTS TO HER ACCEPTANCE TO SUCH TREATMENT?

Had the petitioner really received the preferential treatment and favouritism by her boss
arjun be the true case, as alleged by the petitioner, why did the petitioner chose to remain
silent?
Can Silence on part of the petitioner on allegedly receiving such treatment be termed as
her equal and unequivocal acceptance to such favouritism and her keen interest in being
the good books of her boss to keep receiving such further treatment in the future?

Why did the petitioner chose to allege sexual harassment only when the appraisals and
incentives by Arjun started to decline on account of her decreasing work performance
and the preferential treatment was no more?

4. WHETHER THE FORMATION AND FUNCTIONING OF INTERNAL

COMPLAINTS COMMITTEE WAS IN ACCORDANCE WITH THE MANNER
PRESCRIBED IN THE STATUTE?

The formation of Internal Complaints Committee was duly made under section $ of the
Act. The formation or constitution of the committee is neither disputed as per the facts,
nor challenged by either of the party on any valid grounds.

Further, The functioning of the Internal Complaints Committee was strictly in accordance
with the provisions laid down under chapter IV, V & VI of the Act. The complaint was
duly made, The ICC took cognizance of the matter and on the very first meeting, the
settlement was arrived at by both the parties under section 10 of the Act.

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5. CAN A COMPLAINT SETTLED UNDER SEC10(4) OF THE POSH ACT BE
REOPENED BY THE COMMITTEE DESPITE THE FAILURE ON PART OF
THE PETITIONER TO FURNISH FULL FACTS OF THE ISSUE?

Petitioner , after arriving at the settlement with the respondent and on being transferred to
a different location i.e Delhi (from Ahmedabad) made a request to reopen the complaint
to the ICC on the suspicion of existence of an alleged nexus between her new boss
Diwakar and her previous boss Arjun.

Section 10 (4) of the statute clearly places a bar on the reopening of the complaints made
once the settlement is arrived at by both the parties.

Further, petitioner failed to provide the full facts of the case and said that she will furnish
full facts only when the complaint will be reopened contravening the expressly stated
provision of section 10(4) of the Statute.

6. CAN THE COMPANY DENY TO DISCLOSE THE NAME OF MEMBERS

CONSTITUTING THE ICC AND OTHER FACTS RELATING TO
FUNCTIONING OF THE COMMITTEE ON ACCOUNT OF
CONFIDENTIALITY?

Section 16 expressly prohibits the publication or making known contents of complaints or

inquiry proceedings. This includes addresses of identity and addresses of the aggrieved
woman, respondent and witnesses, any information relating to conciliation and inquiry
proceedings, recommendations of the Internal Committee or the Local Committee, as the
case may be, and the action taken by the employer or the District Officer under the
provisions of this Act.
Section 8(1)(d) & 8(1)(e) of the RTI Act prohibits disclosure of information unless the
competent authority is satisfied that larger public interest warrants the disclosure of such
information.

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So, the company is fully justified in not disclosing the identity of the members and the
information of the proceedings both under section 16 of POSH Act as well as section 8(1)
(d) & 8(1)(e) of the RTI Act.

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 Arguments Advanced

1. WHETHER THE PETITIONER WAS SEXUALLY HARASSED DURING THE

COURSE OF HER EMPLOYMENT AT HER WORKPLACE?

2. WHETHER THE SEXUAL HARASSMENT OCCURRED BY:

2.1 PREFERENTIAL TREATMENT BY MENTOR IN COURSE OF

EMPLOYMENT?
2.2 INCREASED WORKLOAD OF THE PETITIONER?
2.3 MOVING WORKSTATION NEAR THE DATA RECORD ROOM?
2.4 EXISTENCE OF A NEXUS BETWEEN DIWAKAR AND ARJUN AS
ALLEGED BY PRIYA?

3. WHETHER SILENCE ON PART OF PETITIONER ON RECEIPT OF

PREFERENTIAL TREATMENT AND FAVOURISM BY THE MENTOR
AMOUNTS TO HER ACCEPTANCE TO SUCH TREATMENT?

4. WHETHER THE FORMATION AND FUNCTIONING OF INTERNAL

COMPLAINTS COMMITTEE WAS IN ACCORDANCE WITH THE MANNER
PRESCRIBED IN THE STATUTE?

5. CAN A COMPLAINT SETTLED UNDER SEC10(4) OF THE POSH ACT BE

REOPENED BY THE COMMITTEE DESPITE THE FAILURE ON PART OF
THE PETITIONER TO FURNISH FULL FACTS OF THE ISSUE?

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6. CAN THE COMPANY DENY TO DISCLOSE THE NAME OF MEMBERS
CONSTITUTING THE ICC AND OTHER FACTS RELATING TO
FUNCTIONING OF THE COMMITTEE ON ACCOUNT OF
CONFIDENTIALITY?

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 Prayer

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this
Hon’be HIGH COURT be pleased to:

1. Dismiss the petition filed against XYZ ltd for the lack of jurisdictional powers of the
hon’ble high court of Delhi to adjudicate on the alleged failure in complying with the
provisions of the statute in regard to formation and functioning of the Internal Complaints
Committee formed in Mumbai;

2. Take relevant disciplinary action against the petitioner under section 14 (Punishment for
false or malicious complaint and false evidence) for filing frivolous petition against the
Respondent.

AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good
Conscience.

All of which is most humbly and respectfully submitted.

S/d ___

Counsel for the Respondent

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