# Shailendra Kumar Rai v. State of U.P. & Ors

- **Citation:** (2025) 5 ILRA 480
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-29
- **Case number:** Writ A No. 6131 of 2025
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailendra-kumar-rai-v-state-of-u-p-ors-53391
- **Pages:** 7

## Headnote

Service Law
- Suspension - Sexual
Harassment Complaint - Prima Facie Case -
Constitution of Internal Complaints Committee -
Procedural Irregularities - Appeal Remedy -
Validity.

Held: Suspension is not a punishment but a
measure to ensure free and fair inquiry -
Allegations of 'body shaming' against petitioner,
if proved, may constitute sexual harassment
under Section 2(n) of the Act, 2013 - Internal
Committee indicted petitioner; hence, prima
facie case for suspension made out - Objections
regarding improper constitution of Committee
under Section 4 and non-compliance of Section
11 are legal/factual issues to be raised in
statutory appeal under Section 18 - Court
refrains from final opinion on merits - Direction
issued to petitioner to prefer appeal within four
weeks, to be decided by appellate authority
within two months - Till then, no final
disciplinary action to be taken, suspension to
abide outcome of appeal, subsistence allowance
to continue.

Writ Petition disposed of with directions.
5 All. Shailendra Kumar Rai Vs. State of U.P. & Ors.
481
List of Cases cited:

## Text

480 INDIAN LAW REPORTS ALLAHABAD SERIES
disagreement to the findings returned by
the inquiry officer. Even otherwise in the
considered view of the Court, the report
of inquiry officer does not get a legal
status unless and until it is acted upon. It
is after the inquiry report is acted upon
and disciplinary action is taken that
question arises as to whether inquiry
report is vitiated in law for perverse
findings or to be suggestive of any
procedural flaw.

11. In the circumstances, therefore,
it cannot be said that disciplinary authority
is required to set aside the report of inquiry
officer by remitting the matter for inquiry
afresh. It is sufficient under the rules for
that disciplinary authority to express its
disagreement to order re-inquiry by giving
reasons.

12. Still further, I find that the
petitioner has an alternative efficacious
remedy of statutory appeal before the
Administrative Judge against the order
passed by the punishing authority as per
Rule 9 of Rules, 2013.

13. In the circumstances, therefore,
I consider it appropriate for the petitioner to
relegated him to the remedy of statutory
appeal leaving it open at the same time for
the petitioner to raise all his pleas which
are being taken here before the appellate
authority as well and further held that any
observations made by this Court shall be
taken as limited to the disposal of this
petition only.

14. In view of the above, while I
decline to grant indulgence in the matter of
inquiry report and decision taken by the
punishing authority, I leave it open for the
petitioner to prefer an appeal before the
appellate authority, if so advised.
15. Subject to what has been
observed above, this petition is consigned
to records.
----------
(2025) 5 ILRA 480
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.05.2025

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 6131 of 2025

Shailendra Kumar Rai ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Siddharth Khare

Counsel for the Respondents:
C.S.C., Ghan Shyam Yadav

Service Law
- Suspension - Sexual
Harassment Complaint - Prima Facie Case -
Constitution of Internal Complaints Committee -
Procedural Irregularities - Appeal Remedy -
Validity.

Held: Suspension is not a punishment but a
measure to ensure free and fair inquiry -
Allegations of 'body shaming' against petitioner,
if proved, may constitute sexual harassment
under Section 2(n) of the Act, 2013 - Internal
Committee indicted petitioner; hence, prima
facie case for suspension made out - Objections
regarding improper constitution of Committee
under Section 4 and non-compliance of Section
11 are legal/factual issues to be raised in
statutory appeal under Section 18 - Court
refrains from final opinion on merits - Direction
issued to petitioner to prefer appeal within four
weeks, to be decided by appellate authority
within two months - Till then, no final
disciplinary action to be taken, suspension to
abide outcome of appeal, subsistence allowance
to continue.

Writ Petition disposed of with directions.
5 All. Shailendra Kumar Rai Vs. State of U.P. & Ors.
481
List of Cases cited:

1. U.O.I. Vs Ashok Kumar Aggarwal, (2013) 16
SCC 147

2. C.B. Boby Vs St. of Kerala, 2025 SCC OnLine
Ker 211

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Shri Ashok Khare, learned
Senior Advocate assisted by Shri Siddharth
Khare, learned counsel for petitioner, Shri
Shambhavi
Nanda,
learned
Advocate
holding brief of Shri Ghan Shyam Yadav,
learned counsel for respondents and learned
Standing Counsel.

2. Petitioner who is posted and
working as District Programme Officer,
Kushinagar has invoked extraordinary and
equitable jurisdiction of this Court under
Article 226 of the Constitution to assail the
order of suspension passed against him by
the Chief Secretary Child Development and
Nutrition, Uttar Pradesh basically on
following three grounds:

 (i) The words spoken to the
aggrieved woman does not amount so
sexual harassment in relation to her
workplace more especially in the light of
the statement of the aggrieved woman
herself
recorded
before
the
internal
complaint committee.

(ii)
The
internal
complaint
committee was not duly constituted as
mandatorily required under Section 4 of the
Sexual
Harassment
of
Women
at
Workplace (Prevention, Prohibition and
Redressal) Act, 2013 (for short 'Act,
2013').

(iii)
The
detailed
procedure
required to be followed in consonance with
the rules of punishment and appeal rules
applicable to the employee was not
followed, inasmuch as petitioner was
denied opportunity to cross-examine the
complainant and still further had no
opportunity even to make representation
against the findings before the committee
itself as contemplated under Section 11 of
the Act, 2013.

3.
In
support
of
his
above
arguments learned Senior Advocate has
taken the Court through the findings part of
the report of the internal committee in
which it has come to be returned that
calling a woman to his own house and
stadium for evening walk and making
comments upon her physical body structure
and request for scooty riding with her,
prove that the delinquent employee was
trying to harass her and it was further
proved from the written statement of
Virendra Nath Verma retired cleark and
further recordings of CCTV and further it
cannot be ruled out that CCTV footage /
recording were not disturbed.

4. According to Shri Khare it was
all a sheer doubt expressed in the finding
part itself as there was no direct evidence
that petitioner ever tried to sexually harass
the aggrieved women at any point of time
so as to call an for action under the Act,
2013. Shri Khare has also taken the Court
through the statement of aggrieved women
recorded
by
the
internal
complaint
committee in which she had stated that the
delinquent employee commented upon her
being fatty and used suggest her to go for
evening walk with him at multiple times
and also invited to have meals with him.
Shri Khare submitted that a mere statement
that the petitioner suggested the aggrieved
women to go with him for evening or
morning walk or invited over a meal or to
suggest her to drive the scooty with him as
a pillion rider, is not at all suggestive of
482 INDIAN LAW REPORTS ALLAHABAD SERIES
any element to constitute sexual harassment
within the meaning of the Act. Shri Khare
has also taken the Court through the
provisions as contained under Section 4 of
the Act according to which the internal
complaint committee was to be consisted of
at least one member from a nongovernmental organization or association
committed to the cause of women or person
familiar with issues relating to sexual
harassment as according to him, the
committee
that
was
constituted
and
submitted a report, consisted of only
government
officials
including
the
chairman, who were five in number. The
relevant provision of Section 4 are
reproduced hereunder:

 "4. (1).....

(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 women employed at a senior level at a
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 he
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 organization.

(b) not less that 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
organizations
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.
(emphasis added)

5. Shri Khare has also taken the
Court through Section 11 of the said Act
that
makes
it,
according
to
him,
compulsory for the internal complaint
committee to proceed to hold enquiry into
complaint
in
accordance
with
the
provisions of service rules as applicable to
the said respondent employee. Shri Khare
submits that petitioner being government
employee, is governed under the U.P.
Government
Servant
(Discipline
and
Appeal) Rules 1999 which lays down a
detailed procedure under Rule 7 for holding
enquiry in the matter of major penalty and
whereas in the present case no such either
charge sheet was issued to the petitioner by
the internal complaint committee, nor the
procedure prescribed was followed to get
the statements recorded and to supply the
copy of the complaint if any, made by the
aggrieved woman. Section 11 of the Act,
2013 is reproduced hereunder:

"11. Inquiry into complaint.- (1)
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 matter 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
5 All. Shailendra Kumar Rai Vs. State of U.P. & Ors.
483
Code (45 of 1860), and any other relevant
provisions
of
the
said
Code where
applicable:

Provided
that
where
the
aggrieved woman informs the Internal
Committee or the Local Committee, as the
case may be, that any term or condition of
the settlement arrived at under sub-section
(2) of section 10 has not been complied
with by the respondent, the Internal
Committee or the Local Committee shall
proceed to make an inquiry into the
complaint or, as the case may be, forward
the complaint to the police:

Provided further that where both
the parties are employees, the parties
shall, during the course of inquiry, be
given an opportunity of being heard and a
copy of the findings shall be made
available to both the parties enabling them
to
make
representation
against
the
findings before the Committee."
(emphasis added)

6. In view of the above provisions
Shri Khare has also argued that since
petitioner was not supplied with the
enquiry report, he had no opportunity to
submit representation against the findings
before committee itself.

7. Replying to the above arguments
advanced by learned counsel for petitioner,
Shri Shambhavi Nandan, learned Advocate
has submitted that insofar as the first
argument is concerned, the comments made
by the petitioner to the aggrieved women
amounted to 'body shaming' and in the
event petitioner suggested such a women to
have morning and evening walk with him
and further offered a meal and then also to
be a pillion rider over her scooty, if all
taken together, would constitute sexual
harassment of woman at workplace within
the meaning of Section 2(n) of the Act,
2013. According to him if remarks amounts
to body shaming then it would amount
sexually
coloured
remarks
and
unwelcomed physical remarks at times may
be even sexually coloured remarks. The
definition Section 2(n) is reproduced
hereunder:

"sexual harassment' includes any
one or more of the following unwelcome
acts or behaviour (whether directly or by
implication) namely:-

(i) physical contact and advances;
or

(ii) a demand or request for
sexual favours; or

(iii) making pornography; or

(iv) showing pornography; or

(v)
any
other
unwelcome
physical, verbal or non-verbal conduct of
sexual nature;"
(emphasis added)

8. Meeting the second argument
Shri Shambhavi Nandan submitted that the
petitioner had not only been heard by the
internal complaint committee but even his
statement was recorded and, therefore, the
petitioner cannot raise an argument that he
had no opportunity to contest the matter of
complaint before the internal complaint
committee or that he could not put up his
defence. It is submitted that if petitioner
wanted to cross-examine the aggrieved
women,
he
should
have
made
an
application before the internal complaint
committee itself and hence, after the report
has been submitted for the respondents to
proceed to pass orders upon his indictment
for sexual harassment meted out to
aggrieved women, if has now approached
this Court raising all these pleas, such pleas
should not be allowed. He has also taken
the Court through the statement of
484 INDIAN LAW REPORTS ALLAHABAD SERIES
Petitioner Shailenda Kumar Rai recorded
before the internal complaint committee.

9. Meeting the argument as to the
constitution of the internal complaint
committee, Shri Shambhavi Nandan has
argued that the petitioner ought to have
raised this ground before the internal
committee itself raising the objection that
the committee could not have heard the
matter as it lacked proper constitution. Shri
Shambhavi Nandan, submits that according
to the proviso to Sub-Section 2 of Section 4
one half of the total members are required
to be women and looking to the overall
object of the Act which is aimed at
securing a protective environment for
women at workplace clause 6 of Subsection 2 should be taken as directory and
not mandatory. According to him it is quite
possible
that
at
some
places
such
organizations may not exist and women or
person who can not be found familiar with
issue of sexual harassment. He submits that
what
is
necessary
is
sufficient
representation of women in the committee
as prescribed and that part should be taken
as mandatory.

10. On the point of report being not
supplied
by
the
internal
complaint
committee
to
the
petitioner,
Shri
Shambhavi Nandan submitted that copy of
the complaint itself has been filed which
shows that petitioner had been served with
the copy of the enquiry report and
therefore, the petitioner ought to have
availed
the
opportunity
of
moving
representation before the internal complaint
committee itself against findings as per the
second proviso to Section 11. He has
further argued that had the petitioner
approached the committee and committee
had rejected the representation being barred
by time or otherwise, the petitioner could
have raised this plea that the internal
complaint committee did not address the
issues
that
he
had
raised
in
his
representation.

11. Besides the above argument,
Shri Shambhavi Nandan argued that
petitioner has further opportunity to file
appeal as aggrieved person from the
recommendations of the internal complaint
committee made under subsection 2 of
Section 1 of the Act, 2013. He has placed
Section 18 of the Act 2013 which is
reproduced hereunder:

"18. Appeal (1) Any person
aggrieved from the recommendation 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 subsection (2) of section 14 or section 17 or
non-implementation
of
such
recommendation 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 recommendation."

12. Shri Shambhavi Nandan has
further placed before the Court copy of the
first information report lodged against the
petitioner in connection with the Case
Crime No. 0368 of 2024 under Section 506,
504, 354(a) of the erstwhile IPC by one
Meera Kushwaha in which she had alleged
that the District Programme Officer got her
seated beside him and started indecent talks
and then started touching her body parts
5 All. Shailendra Kumar Rai Vs. State of U.P. & Ors.
485
and even suggest her to accompany her to
his room to have sex and when she
objected he started abusing her using filthy
language and even threatened her to
remove
her
from
employment.
Shri
Shambhavi Nandan argued that the conduct
of the petitioner in the department has been
such that many women workers have been
feeling uncomfortable at work place while
working with him.

13. Replying the above arguments,
Shri Khare submitted that the allegations
made in the first information report are yet
to be proved in trial, in as much as these
allegations were in respect of another
woman and has nothing to do with the case
in hand. It is argued by Shri Khare that
even if the petitioner approaches to the
appellate authority, since the respondents
were required to follow the procedure
prescribed under Rule 7 of the U.P.
Government
Servant
(Discipline
and
Appeal) Rules, 1999, there was no reason
or occasion for them to place the petitioner
under suspension.

14. Having heard learned counsel
for respective parties and having perused
the records, this Court is required to
examine as to whether there was any prima
facie case made out against the petitioner to
place him under suspension and whether
the suspension would be in any manner
prejudicing the rights of the petitioner in
approaching the concerned authority. It is
well
settled
principle
in
service
jurisprudence
that
suspension
is
no
punishment. An employee is placed under
suspension by the employer only to ensure
that he is not able to influence the enquiry
in any manner, in as much as he is not able
to interfere with the evidence or also in
such cases where the employer finds it
necessary to place an employee under
suspension so as to have smooth disposal of
disciplinary proceedings.

15. In the case of Union of India v.
Ashok
Kumar
Aggarwal
(2013)
16
Supreme Court Cases 147, vide paragraph
19 the Court has held thus:

"19. During suspension, the
relationship
of
master
and
servant
continues between the employer and the
employee. However, the employee is
forbidden to perform his official duties.
Thus, a suspension order does not put an
end to the service. Suspension means the
action of debarring for the time being from
a function or privilege or temporary
deprivation of working in the office. In
certain cases, suspension may cause stigma
even after exoneration in the departmental
proceedings or acquittal by the criminal
court, but it cannot be treated as
punishment
even
by
any
stretch
of
imagination in the strict legal sense.

16. Naturally if the employee is
regularly discharging duties on a position
that he holds as ahead of the department, in
matters of complaint of sexual harassment
where a decision is yet to be taken finally
by the authority, the authority may place
the said employee under suspension firstly
as a confidence building measure amongst
the working women in the department and
secondly to ensure that such an officer may
not abuse his position to pressurize other
working women or otherwise also to the
aggrieved women even while the final
action is still pending consideration. The
circumstances and the manner in which the
'body shaming' as verbal remarks has been
attributed to the petitioner by the aggrieved
women at the workplace, it may constitute
sexual harassment. However, observation if
made as a final view in this regard may run
486 INDIAN LAW REPORTS ALLAHABAD SERIES
adverse to the petitioner and may influence
the disciplinary authority in taking final
action therefore, I refrain myself from
expressing any final view qua the act of
'body shaming' but since the petitioner has
been indicted by the internal complaint
committee, prima facie a case is made out
to justify the department in placing the
petitioner under suspension pending final
action in the disciplinary proceedings. In
the case of C.B.Boby v. State of Kerala
2025 SCC OnLine Ker 211 the High Court
has expressed its view that body shaming is
not acceptable in our society. Vide
paragraph 10 the court has observed thus:

" 10. Before concluding, I am
forced to say that body shaming is not
acceptable in our society. Comments about the
body of a person as too fat, too skinny, too
short, too tall, too dark, too black, etc. should
be avoided. There is a sense that we are all
"too something," and we are all "not enough".
This is life. Our bodies will change, our minds
will change and our hearts will change.
Everybody should be vigilant while making
comments about others, whether they are men
or women. I leave it there."

17. Coming to the other arguments
regarding non-compliance of provisions for
constituting internal complaint committee or
that procedure has not been followed as
contemplated under Section 11, I am of the
considered view that this aspect can be looked
into by the appellate authority exercising its
power under Section 18 of the Act in the event
petitioner prefers an appeal. Though the
constitution of internal complaint committee is
a legal issue but other factual issues are also
involved like in the given facts and
circumstances whether petitioner can be
subjected to final action in terms of the
punishment without following the procedure
prescribed under the departmental punishment
and appeal rules and all this can be gone into
by the appellate authority itself and this would
also include consideration of question as to
validity of the recommendations made by the
internal complaint committee.

18. Under the circumstances while
I decline to grant indulgence in the matter
of suspension I dispose of this petition at
this stage with a direction to the petitioner
to prefer an appeal within a period of four
weeks from today and in the event any such
appeal is preferred, the same shall be
disposed of by the appellate authority by
means of a reasoned and speaking order
within a further period of two months. It is
further provided that the appellate authority
will look into all legal aspects of the matter
that may be raised by the petitioner in
appeal.

19. It is further provided that until
the appeal is finally decided no disciplinary
action shall be taken against the petitioner
pursuant to the recommendations made by
the internal complaint committee and
suspension of petitioner shall also abide by
the final out come of the appeal, however,
petitioner
shall
be
regularly
paid
subsistence allowance so long as he
remains under suspension.
----------
(2025) 5 ILRA 486
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.05.2025

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Writ A No. 6157 of 2024
With other connected cases

Shashank Sachan ...Petitioner
Versus
State of U.P. & Ors. ...Respondent