Bombay High Court Holds That IC’s Decision Rejecting a POSH Complaint for Lack of Sexual Element Is Appealable Under Section 18

Case Name: Anup Vikal v. State of Maharashtra

Factual Background

The Bombay High Court considered whether an aggrieved woman can invoke the statutory appellate remedy under Section 18 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) against a communication issued by an Internal Committee (“IC”) refusing to inquire into a complaint on the ground that the allegations did not contain any sexual element.

The complainant had been employed with an infrastructure investment trust and, in October 2023, submitted a complaint to the IC alleging various instances of inappropriate conduct. As one of the IC members was alleged to have a conflict of interest, the complaint was forwarded to an external member. On 30 October 2023, the IC communicated that, after considering the allegations, it had determined that they did not have a sexual element and that the complaint therefore did not fall within its jurisdiction.

The complainant challenged the communication before the Industrial Court under Section 18 of the POSH Act. The Industrial Court held the appeal maintainable, set aside the IC’s communication and remanded the matter to the IC for a fresh inquiry. The employees and other persons affected by the proceedings challenged this decision before the High Court, contending that Section 18 permits an appeal only against the specific recommendations contemplated under Sections 13, 14 and 17 of the POSH Act.

Court’s Analysis

The High Court examined the statutory scheme of Sections 11, 13 and 18 of the POSH Act. It observed that the right of appeal under Section 18 is a statutory right and therefore an appeal cannot be maintained against every decision of an IC. It is restricted to the recommendations specifically enumerated in the provision.

However, the Court held that the expression “recommendation” cannot be interpreted in a manner that deprives an aggrieved woman of a remedy where the IC has actually considered

her complaint and arrived at a conclusion that it does not involve sexual harassment. The Court distinguished a situation where an employer or IC completely refuses to take cognizance of a complaint from the present case, where the complaint had been forwarded to the IC, considered by its members and a decision had been rendered.

The Court accordingly held that where an IC considers a complaint and concludes that it does not contain an element of sexual harassment, that decision constitutes a recommendation capable of being challenged under Section 18.

The Court nevertheless criticised the Industrial Court for deciding the merits of the appeal when it had only taken up the issue of maintainability. The Industrial Court had set aside the IC’s communication and directed a fresh inquiry without properly adjudicating the limited question before it.

Order of the Court

The High Court held that the Section 18 appeal was maintainable. However, it set aside the portion of the Industrial Court’s order which decided the appeal on merits and directed a fresh inquiry. The matter was remanded to the Industrial Court for fresh adjudication on merits, with all contentions of the parties kept open. The Industrial Court was requested to decide the matter expeditiously, preferably within four months.

Key Takeaway

The judgment clarifies that an IC cannot insulate its decision from appellate scrutiny merely by characterising its rejection of a complaint as a threshold jurisdictional decision. Where the IC has taken cognizance of a complaint, considered its allegations and concluded that they lack a sexual element, its decision is appealable under Section 18 of the POSH Act. At the same time, the appellate forum must confine itself to the issues properly before it and cannot decide the merits without giving the parties an appropriate opportunity of being heard.

Written by Adv. K. Sri Hamsa