Bombay High Court
Mr Rohit AnandversusSTATE OF MAHARASHTRA AND ORS
- Decided
- Disposal
- Disposed Off
Holding
The ICC’s email dated 30 October 2023 is a 'recommendation' under Section 13(2) of the POSH Act, making the appeal under Section 18 maintainable, and the Industrial Court’s order is set aside and remanded for fresh determination.
Summary
The High Court examined whether a communication from the Internal Complaints Committee (ICC) stating that a complaint did not involve sexual harassment constitutes a "recommendation" under Section 13(2) of the POSH Act, thereby making an appeal under Section 18 maintainable. The Industrial Court had allowed the appeal and set aside the ICC’s email, but the Court found that the Industrial Court decided the merits of the appeal without properly addressing the maintainability issue. The Court held that the ICC’s email is indeed a recommendation, so the appeal is maintainable, and consequently set aside the Industrial Court’s order in part. It also remanded the appeal back to the Industrial Court for a fresh determination on its merits, keeping all parties’ contentions open. The Court declined to entertain the petitioners’ arguments that the remedy of appeal was unavailable or that the court lacked territorial jurisdiction over a foreign‑based employee. The order partially allowed the writ petitions and disposed of them.
Issues considered
- Whether a communication by the ICC that a complaint lacks a sexual element is a 'recommendation' within the meaning of Section 13(2) of the POSH Act and thus appealable under Section 18.
- Whether the appeal filed by Respondent No.2 under Section 18 of the POSH Act is maintainable.
- Whether the Industrial Court erred by deciding the merits of the appeal while only the maintainability application was before it.
- Whether the POSH Act applies to a petitioner employed outside India (Rohit Anand) for purposes of the appeal.
- Whether the order of the Industrial Court should be set aside and the matter remanded for fresh adjudication.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order 41 Rule 23
- Indian Penal Code, 1860 — s. 509
- Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 — s. 11, 13(2), 13(3), 14, 17, 18, 2(n), 9
Subjects
- POSH Act
- Section 18 appeal
- Internal Complaints Committee
- maintainability
- jurisdiction
- sexual harassment
- writ petition
- industrial court
- remand
- procedural fairness
Judgment
Neeta Sawant WP-7430 OF 2026
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7430 OF 2026
MR. ANUP VIKAL …..Petitioner
: Versus :
STATE OF MAHARASHTRA AND ORS. ….Respondents
WITH
WRIT PETITION NO. 7434 OF 2026
Ms. CHANDRANI SEN …..Petitioner
: Versus :
STATE OF MAHARASHTRA AND ORS. ….Respondents
WITH
WRIT PETITION NO. 8418 OF 2026
MR. ROHIT ANAND …..Petitioner
: Versus :
STATE OF MAHARASHTRA AND ORS. ….Respondents
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Neeta Sawant WP-7430 OF 2026
Mr. Sharan Jagtiani, Senior Advocate with Ms. Shraddha Achliya, Mr.
Ankoosh Mehta, Ms. Mansi Chheda & Ms. Arunima Phadke i/b Cyril
Amarchand Mangaldas, for Petitioner in WP/7430/2026.
Mr. Ashish Kamat, Senior Advocate with Ms. Ankita Singhania i/b
Cyril Amarchand Mangaldas, for Petitioner in WP/7434/2026.
Ms. Madhavi Nalluri i/b Cyril Amarchand Mangaldas, for Petitioner in
WP/8418/2026.
Mr. Karl Tamboly with Ms. Vilasini Balasubramanian & Ms. Victoria
Gonsalves i/b Jayakar & Partners, for Respondent No. 2 in
WP/7430/2026.
Dr. Abhinav Chandrachud with Ms. Vilasini Balasubramanian & Ms.
Victoria Gonsalves i/b Jayakar & Partners, for Respondent No. 2 in
WP/7434/2026.
Mr. Aseem Naphade with Ms. Vilasini Balasubramanian & Ms. Victoria
Gonsalves i/b Jayakar & Partners, for Respondent No. 2 in
WP/8418/2026.
Ms. V.R. Raje, AGP for State, Respondent in WP/8418/2026 &
WP/7430/2026.
Ms. A.A. Nadkarni, AGP for State, Respondent in WP/7434/2026.
CORAM : SANDEEP V. MARNE, J.
JUDGMENT RESD. ON : 04 August 2026.
JUDGMENT PRON. ON : 19 August 2026.
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JUDGMENT :
1) Whether a remedy of appeal under Section 18 of the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 is available to the aggrieved woman against a mere
communication made by the Internal Complaints Committee that the
complaint does not involve an element of sexual harassment is the issue
which the Court is tasked upon to decide in the petitions.
THE CHALLENGE
2) These Petitions take exception to the Judgment and Order
dated 4 May 2026 passed by the Learned Member, Industrial Court,
Mumbai in Appeal (IESO) No. 3 of 2024, which was filed by Respondent
No. 2 challenging the communication of Internal Complaints Committee
(ICC) dated 30 October 2023. The Industrial Court has allowed the
Appeal by rejecting Applications preferred by the Petitioners questioning
maintainability of the Appeal, and has set aside ICC's communication
dated 30 October 2023. The Industrial Court has remanded the
proceedings to the ICC with directions to conduct the inquiry by
following the procedure contemplated under the Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(POSH Act) and by affording due opportunity to all the parties.
FACTS
3) Maple Infra InvIT Investment Manager Private Limited
(Maple Infra) is an infrastructure investment trust. Petitioners- Mr.
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Anup Vikal and Ms. Chandrani Sen are employees of Maple Infra.
Petitioner- Mr. Rohit Anand claims to be employed by CDPQ Asia Pacific
Pte. Ltd. (CDPQ) a Singapore based entity which is a shareholder of
Maple Infra. Respondent No.2 commenced her employment with Maple
Infra from 1 August 2023 as General Counsel (Vice President-Legal).
According to the Petitioners, Respondent No. 2 found it unbearable to
continue employment on account of various factors, and she voluntarily
tendered her resignation on 12 October 2023. Respondent No.2 was thus
employed with Maple Infra for 73 days and it is claimed that she
physically attended office only for 28 days. On 18 October 2023, Ms.
Chandrani Sen shared draft of Mutual Settlement Agreement (MSA) with
second Respondent outlining the terms of amicable exit from Maple
Infra. However, the negotiations on settlement failed after exchange of
drafts. On 19 October 2023, second Respondent filed a complaint before
Ethics and Compliance Committee of CDPQ alleging wrongful
termination, gender bias, discrimination and retaliation. By email dated
21 October 2023, she rejected the draft MSA terms. On 25 October 2023,
Maple Infra accepted her resignation and agreed to pay her final dues.
On 26 October 2023, Respondent No. 2 expressed unwillingness to exit,
sought negotiations regarding the severance package, and inquired
about resuming work. On 28 October 2023, Maple Infra informed
Respondent No. 2 that 28 October 2023 would be treated as the last date
of employment and that her final dues would be processed accordingly.
4) In the above background, on 28 October 2023 at 6.22 pm
Respondent No. 2 sent an email to the ICC of Maple Infra branding the
same as a complaint under the POSH Act. In her complaint, Respondent
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No. 2 objected to Ms. Chandrani Sen being member of the ICC.
Therefore, her complaint was forwarded to an external member of ICC
and the same was intimated to her by email of 30 October 2023 at 9:16
pm. The external member of the ICC, Ms. Rewati Bhagwat, Director of
Rewati Bhagwat Consultancy Services, addressed email at 9:39 pm on 30
October 2023, stating that upon deliberation between members of the
ICC, it was determined that the nature of allegations did not have any
sexual element and that the complaint would not be within the
jurisdiction of ICC to undertake an inquiry. On 30 October 2023 at 10:19
pm, Maple Infra terminated the employment of second Respondent
setting out final monetary payments.
5) On 3 November 2023, Respondent No 2 addressed an email
to the ICC complaining about the rejection of her complaint in hurry
without conducting any investigations and in violation of provisions of
POSH Act. The Board of Maple Infra did not entertain the complaint of
second Respondent and conveyed to her by email dated 8 November
2023 that her employment stood terminated on 26 October 2023.
Respondent No. 2 addressed an email to Maple Infra on 14 November
2023 acknowledging receipt of full and final amount of Rs. 11,99,466 +
Rs.90,739/- and also provided response to the Board's email dated 8
November 2023. On 16 November 2023, the external member of ICC
replied to the second Respondent once again informing about the
decision of not to entertain the complaint on account of the same not
having any sexual element. On 3 December 2023, second Respondent
sent email stating that statement of Mr. Anup Vikal about keeping Mr.
Rohit Anand of CDPQ happy at all costs had sexual tone in it. The
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external member of ICC replied on 8 December 2023, once again
reiterating its decision and providing reasons for rejection of the
complaint.
6) In the above background, Respondent No.2 filed Appeal
(IESO) No. 3 of 2024 before the Industrial Court, Mumbai under Section
18(1) of the POSH Act challenging ICC's email dated 30 October 2023.
Petitioners applied for the deletion from the Appeal and the applications
were rejected by order dated 20 January 2025. Writ Petition Nos. 1730 of
2025, 1731 of 2025 and 1733 of 2025 were filed by the Petitioners
challenging the order dated 20 January 2025. This Court disposed of the
Petitions granting liberty to file applications questioning maintainability
of the Appeal as well as for seeking its dismissal and requested the
Industrial Court to defer recording of evidence till disposal of such
applications. Respondent No.2 filed Application seeking recall of Order
dated 5 February 2025 in which this Court had passed an order directing
that the applications for maintainability and dismissal be decided
without being influenced by observations made in the Order dated 5
February 2025. In February 2025, Petitioners filed separate Applications
questioning maintainability as well as seeking dismissal of the Appeal.
On 20 April 2026, Petitioners filed pursis for deciding maintainability
application first. Respondent No.2 filed Writ Petition No. 5610 of 2026 in
this Court for deciding the maintainability application and dismissal
application together, which is pending.
7) The Industrial Court took up the maintainability application
for decision. After hearing the parties, it has passed judgment and order
dated 4 May 2026 holding the Appeal as maintainable and dismissing the
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maintainability applications. The Tribunal has also proceeded to allow
the Appeal itself by setting aside ICC's email dated 30 October 2023 and
has remanded the matter to the ICC for fresh inquiry. Aggrieved by the
Judgment and Order dated 4 May 2026 passed by the Industrial Court,
Petitioners have filed the present Petitions.
SUBMISSIONS
8) Extensive submissions are canvassed in each of the Petitions
by the learned counsel appearing for the rival parties, which are noted
briefly.
SUBMISSIONS ON BEHALF OF PETITIONERS
9) Mr. Jagtiani the learning Senior Advocate appearing for the
Petitioner, in Writ Petition No. 7430 of 2026 (Mr. Anup Vikal) submits
that the Industrial Court has grossly erred in deciding the main Appeal
itself while it was expected to pass order only on the maintainability
applications. That only the maintainability applications were argued by
the parties pursuant to the pursis filed by the Petitioners on 20 April
2026. That even in Writ Petition No. 5610 of 2026 filed by the second
Respondent, it was admitted that only the maintainability applications
were being heard. That even in para 21 of the impugned order the
Tribunal itself has stated that it was proceeding to hear and decide the
issue of maintainability on priority basis. That even a solitary issue was
framed about the maintainability of the Appeal. However, while passing
the impugned order, the Industrial Court has not only dismissed the
maintainability application but has also dismissed the entire Appeal and
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has remanded back the matter to ICC for conducting inquiry under the
POSH Act. That while doing so, parties are not heard on merits.
10) Mr. Jagtiani further submits that though issue of
maintainability was framed and taken up for decision, the Industrial
Court has not really decided the same. That there are no reasons in the
impugned order for holding that the Appeal is maintainable. That the
impugned order, without deciding the issue of maintainability, goes
beyond the issue of maintainability and decides merits of the Appeal
without providing the parties an opportunity to address the Court on
merits. Without prejudice to the contention that objection on
maintainability has not been decided, Mr. Jagtiani submits that the
Appeal filed by Respondent No.2 is not maintainable under Section 18 of
the POSH Act. That an Appeal under Section 18 of the POSH Act can be
filed by any person aggrieved by recommendations made under Section
13(2) or 13(3)(i) or (ii) or Section 14(1) or (2) or Section 17 or against
non-implementation of a recommendation. That therefore only a
recommendation made on conduct and completion of inquiry under
Section 13(1) and (2) of the POSH Act is capable of being appealed under
Section 18. That inquiry can be conducted under Section 11 only when a
'complaint’ under Section 9 of the POSH Act is received by the ICC. That
though the word 'complaint' is not defined under the POSH Act,
considering the Preamble of the Act, the complaint necessarily must be a
complaint of sexual harassment. That therefore in absence of a
complaint of sexual harassment, which is a jurisdictional fact for ICC to
conduct an inquiry, no inquiry can be conducted. In support of this
contention, he relies on judgments of Kerala High Court in Hareesh
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Versus. Kerala State Financial Enterprises Ltd. and Ors. 1 and Dr.
Prasad Pannian Versus. Central University of Kerala and Ors.2.
11) That every complaint cannot lead to inquiry under Section
11 as wrongly held by the Industrial Court. That in the present case, the
ICC found that the complaint filed by the Second Respondent did not
contain allegation of any sexual harassment and that email of ICC dated
30 October 2023 cannot be called as 'recommendation' under Section 13
of the POSH Act since there has been no inquiry under Section 11. That
therefore email dated 30 October 2023 could not have been challenged
by filing an Appeal under Section 18, since the same is not a
'recommendation'. Mr. Jagtiani further submits that the Industrial Court
is a Court of limited jurisdiction, empowered to entertain an appeal
under Section 18 of the POSH Act against a 'recommendation' by ICC.
That its powers are limited and circumscribed by the statute.
12) Mr. Jagtiani further submits that Respondent No.2 is not
remediless and can file Writ Petition under Article 226 of Constitution of
India challenging the email of ICC not entertaining her complaint. Mr.
Jagtiani relies on judgment of this Court in ABC Versus. Internal
Complaints Committee and Ors. 3 in support of his contention that only
cases involving non-conduct of inquiry in conformity with the provisions
of the POSH Act can be raised before the Appellate Authority and not
where ICC refuses to discharge statutory duty to inquire into the
complaint of sexual harassment. Mr. Jagtiani would accordingly pray for
setting aside the impugned judgment and order of the Industrial Court.
1 2025 SCC Onlne Ker 963.
2 2020 SCC Online Kerala 6550
3 WP(ST) No. 15574 of 2025 decide on 4 November 2025
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13) Mr. Kamat, the learned Senior Advocate appearing for the
Petitioner in Writ Petition (L) No. 15880 of 2026 (Ms. Chandrani Sen)
adopts the submissions of Mr. Jagtiani. Additionally, he submits that
email dated 30 October 2023 cannot be treated as a 'recommendation'
under Section 13 of the POSH Act. That under the POSH Act
'recommendation' can be made by ICC only upon completion of inquiry
and when the ICC arrives at the conclusion that the allegation has been
proved. That both the requirements are absent in the present case. That
the ICC at the threshhold has refused to entertain the complaint as the
same does not contain allegation having sexual harassment element as
provided under Section 2(n) and (3) of POSH Act. That the second
Respondent is not remediless and can always file Writ Petition under
Article 226 of Constitution of India as held by the Karnataka High Court
in X Versus. Internal Committee Ani, Technologies Pvt. Ltd. And Ors. 4.
He accordingly prays for setting aside the impugned judgment and order
of the Industrial Court.
14) Ms. Nalluri, the learned counsel appearing for the Petitioner
in Writ Petition No. 8418 of 2026 (Mr. Rohit Anand) adopts the
submissions of Mr. Jagtiani and Mr. Kamat. Additionally, she submits
that Petitioner is situated outside the territorial ambit of the POSH Act.
That he is a resident of Singapore and has always resided and worked
exclusively at Singapore throughout the employment of Respondent
No.2. That Petitioner met Respondent No.2 only on one occasion during
subsistence of her employment. That Petitioner was never an employee
of Maple Infra and has been employed by CDPQ, a Singapore based
4 2024 SCC Online Kar 102.
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entity which is a mere shareholder of Maple Infra. That CDPQ and Maple
Infra are separate and independent corporate entities with distinct
management, operational structures and employment frameworks. That
POSH Act is confined to the workplaces situated within the territory of
India. That the jurisdiction of ICC is therefore necessarily predicated
upon existence of a statutorily recognized 'workplace' as defined under
Section 2(o) of the POSH Act. That since Section 1(2) of POSH Act makes
the Act applicable to the whole of India, the statutory concept of
workplace under Section 2(o) is confined only to workplaces and
employment relationships falling within the territorial operation of the
Act viz. within India. That these objections raised by the Petitioner-
Rohit Anand have remained undecided by the Industrial Court. She
accordingly prays for setting aside of the impugned judgment and order
of the Industrial Court.
SUBMISSIONS ON BEHALF OF RESPONDENT NO. 2
15) Mr. Tamboly, the learned counsel appearing for Respondent
No.2 submits that the Industrial Court has decided the question of
maintainability of the Appeal and has expressly rejected the
maintainability applications. That Petitioners’ entire case was premised
on factual assertion that the Complaint does not have any sexual
element/make out a case under Section 2(n) of the POSH Act. That
specific dismissal applications are filed raising grounds of absence of
sexual element in the Complaint. Therefore, the Industrial Court was
justified in examining the complaint to ascertain whether the seminal
jurisdictional fact of a sexual element in the complaint in fact existed.
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That having driven the Industrial Court into the direction of existence of
sexual element in the allegations, Petitioners are now estopped from
questioning the wisdom of the Industrial Court in going into the merits
of the case. That Section 2(n) of the POSH Act defines the term ‘sexual
harassment’ expansively and that the definition must be interpreted
broadly and purposively from the perspective of the aggrieved woman,
focusing on the safety and dignity rather than being defeated by
harasser’s semantic circumlocutions or narrow technicalities. He relies
on the judgment of Madras High Court in HCL Technologies Limited
Rep. By Mr. Nerwin Dhanraj Versus. N. Parsarathy 5. In support of his
contention that POSH Act is a welfare legislation, which must be
liberally construed in favour of the aggrieved woman, he relies on
judgment of Madhya Pradesh High Court in Global Health Pvt. Ltd.
Versus. Local Complaint Committee District Indore and Ors.6
16) Mr. Tamboly further submits that the communication dated
30 October 2023 of ICC amounts to a complete and final rejection of
complaint of Respondent No.2 and the same operates as a decision under
Section 13(2) of the POSH Act. It is not a mere pre-enquiry
communication or a threshold jurisdiction order as sought to be
suggested by the Petitioners. That POSH Act does not contemplate any
distinction between post inquiry dismissal and summary pre-enquiry
dismissal by the ICC. That if interpretation put forth by Petitioners is
validated, every delinquent organization would simply resort to a tactic
for evading statutory compliance by shutting down complaints at the
threshold to shield themselves from proper inquiry and appellate
5 2025 SCC Online Mad 579
6 I.L.R. (2019) M.P. 2482.
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scrutiny. That it is a foundation rule of administrative and statutory
governance that the true characters of an order is determined by its pith,
substance and operationality and not by the label or nomenclature given
to it by the authority. That the Industrial Court has rightly pierced the
procedural evasion by holding the Appeal as maintainable. He relies on
judgment of this Court in Poonam Vijay Thakkar Versus. Aditya Birla
Capital Shared Services Limited and Ors. 7 in support of his contention
that statutory remedy of Appeal under Section 18 of POSH Act is upheld
by the Division Bench rather than permitting invocation of writ
jurisdiction when complaint of sexual harassment was rejected at the
threshold. He relies on judgment of Delhi High Court in Sharanjeet Kaur
Versus. IDBI Bank Ltd.8 which also upholds the appellate remedy under
Section 18 of the POSH Act where complaint of sexual harassment is
rejected without inquiry. On above broad grounds Mr. Tamboly prays for
dismissal of the Petition.
17) Dr. Chandrachud would submit that when the ICC dismisses
a complaint for want of jurisdiction, its decision is an appealable
'recommendation' under Section 18 of the POSH Act. That when ICC
decides that the complaint does not contain allegations which are sexual
in nature, its decision constitutes a ‘recommendation’ within the
meaning of Section 13(2) of the POSH Act. That email dated 30 October
2023 of ICC was sent within 23 minutes of receiving the complaint. That
deliberations were made in respect of the allegations contained in the
complaint for concluding that the complaint does not have sexual
element. That what is made by the ICC on 30 October 2023 is a
7 WP. (L) NO. 3972 of 2020 decided on 8 July 2021
8 2024 SCC Online Del 3918
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‘recommendation’ within the meaning of Section 13(2) of the POSH Act.
He relies on judgment of the Delhi High Court in Sharanjeet Kaur
(supra) in support of his contention that when a complaint is closed by
ICC without holding an inquiry, the same constitutes an appealable
order under Section 18 of the POSH Act.
18) Dr. Chandrachud further submits that POSH Act is a social
welfare legislation and that therefore the same must be construed
liberally and relies on judgments of the Apex Court in Dr. Sohail Malik
Versus. Union Of India and Another. and Regional Provident Fund
9
Commissioner Versus. Hooghly Mills Company Limited and Ors. 10. That
if ICC’s decision of allegations not constituting sexual element is not
treated as an ‘appealable recommendation’, then the broad social
welfare purpose of the legislation will be destroyed. That complainant in
such cases cannot be relegated to a writ remedy considering the narrow
scope of interference in writ proceedings as compared to broad statutory
remedy of appeal. That judgments of Kerala High Court relied upon by
the Petitioners do not decide any of the propositions under Section 18 of
the POSH Act and in none of the cases, the Kerala High Court was
concerned with the issue of ICC’s decision to close a complaint for lack
of jurisdiction constituting an appealable recommendation.
19) Dr. Chandrachud further submits that even when a Civil
Court dismisses a suit for lack of jurisdiction, the decision constitutes a
decree, that is appealable. In support, he relies on judgment of the Apex
9 2025 SCC Online SC 2751
10 2012 (2) SCC 489
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Court in Sayyed Ayaz Ali Versus. Prakash G. Goyal and Ors.11 That
applying the same analogy, when ICC dismisses a complaint for lack of
jurisdiction or for complaint not containing allegations of sexual nature,
such decision constitutes a recommendation capable of being appealed
under Section 18 of the POSH Act.
20) Dr. Chandrachud further submits that even if it is assumed
arguendo that the impugned judgment and order of the Industrial Court
does not contain the requisite or elaborate reasons, a Writ Court may not
interfere with such order when conclusions in the order are supported by
reasons discernible from records. That the impugned order contains
succinct reasons which could have been more elaborative and that the
Industrial Court could have recorded a finding that the ICC’s decision as
to lack of jurisdiction constitutes an appealable recommendation.
However, insufficient reasons or even complete absence of reasons is no
ground for writ Court to interfere if no injustice is done in the case or if
reasons are apparent from the record. In support, he relies on judgments
of the Apex Court in M/s. Woolcombers of India Ltd. Versus.
Woolcombers Workers Union and another. 12
, Garment Craft Versus.
Prakash Chand Goel 13, K.L. Tripathi Versus. State Bank of India and
Ors.14. That every error of the lower Court need not be corrected in writ
proceedings and no case for interference is made out where no prejudice
is caused to a party.
11 2021 (7) SCC 456
12 1974 (3) SCC 318
13 2022 (4) SCC 181
14 1984 (1) SCC 43
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21) Dr. Chandrachud further submits that Petitioners
themselves expanded the scope of their maintainability application
before the Industrial Court by arguing merits of the Appeal. That in the
written submissions filed by the Petitioners, submissions were canvassed
beyond maintainability touching merits of the Appeal making Industrial
Court believe that merits of the Appeal were also required to be
considered. Petitioners are now estopped from contending that it was
not open for the Industrial Court to decide merits of the Appeal.
22) Dr. Chandrachud further submits that even when an issue is
not framed by a Court/Tribunal, no prejudice is caused to a party, who
knows, despite the said omission, what arguments are to be canvassed
before the Court/Tribunal. In support, he relies on judgment of the Apex
Court in Sayeda Akhtar Versus. Abdul Ahad 15. That therefore mere
non-framing of issues relating to merits of the Appeal does not render
the order of the Industrial Court erroneous when Petitioners were fully
aware of the position that the merits of the Appeal were also argued
before the Industrial Court.
23) Lastly, Dr. Chandrachud submits that when a lower
court/forum disposes off cases on preliminary point and the appellate
court reverses the said finding, it is open for the appellate court to
remand the matter back to the lower court/forum for a fuller
reconsideration. He relies on provisions of Order 41 Rule 23 of Code of
Civil Procedure, 1908 (the Code) and relies on judgment of the Apex
Court in J. Balaji Singh Versus. Diwakar Cole and Ors. 16. He submits
15 2003 (7) SCC 52
16 2017 (14) SCC 207.
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that whether the act of the Petitioners is sexual in nature or not is a
matter of perception which requires evidence and in support he relies on
judgments in Additional District and Session Judge 'X' Versus.
Registrar General, High Court of Madhya Pradesh and Ors.17 and
Apparel Export Promotion Council Versus. A.K. Chopra 18. That ICC had
clearly erred in failing to conduct an inquiry and Industrial Court has
rightly remanded the matter back to the ICC for reconsideration. That no
prejudice is caused to the Petitioners by mere order of remand. Dr.
Chandrachud accordingly prays for dismissal of the Petition.
24) Mr. Naphade the learned counsel adopts the submissions of
Dr. Chandrachud and Mr. Tamboly. Additionally, he submits that under
the scheme of POSH Act, the ICC is a fact finding body on whose factual
findings, the employer is supposed to take action. That therefore when
ICC comes to a conclusion, even without conducting an inquiry, that
allegation of sexual harassment is not made out on reading of a
complaint, such decision would also amount to a recommendation. That
the word 'recommend' used in Section 13 has not been defined under the
POSH Act. That it is well settled law that where a statue deploys a word
which is not defined, the word bears its ordinary meaning. He relies on
judgment of the Delhi High Court in Union of India Versus. Telecom
Regulatory Authority Of India19 in support of his contention that the
word 'recommend' has to be seen in the context in which it is used and
the same means ‘to advise’ or ‘to counsel’ a course of action. That
therefore the decision of the ICC would clearly fit into the ambit of the
17 2015 (4) SCC 91
18 1999 (1) SCC 759
19 1998 3 Comp LJ 400 (Del)
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term 'recommendation'. Mr. Naphade relies on judgment of this Court in
Poonam Vijay Thakkar (supra) in support of his contention that similar
decision taken by ICC not to entertain the complaint of sexual
harassment was held to be appealable under Section 18 of the POSH Act.
Mr. Naphade also prays for dismissal of the Petition.
CONSIDERATION OF SUBMISSIONS, REASONS AND ANALYSIS:
25) The issue involved in the Petitions is whether a
communication made by the ICC that the complaint does not involve
sexual element for conduct of inquiry under the POSH Act, can be
treated as a ‘recommendation’ within the meaning of Section 13(2) of
the POSH Act, which is capable of being appealed under Section 18.
26) In the present case, Respondent No.2 filed a complaint vide
email dated 28 October 2023 before the ICC formulated by Maple Infra.
At that time, The ICC was presided over by Ms. Chandrani Sen and
therefore Respondent No.2 requested for replacement of Ms. Sen from
the ICC by raising the issue of conflict. Respondent No.2. contended that
Ms. Chandrani Sen had conflicted herself on account of her presence at
the time of making the complaint against Mr. Rohit Anand, as well as on
account of she suggesting to Respondent No.2 to go ahead accepting the
unreasonable demands of Mr. Rohit Anand. The request of Respondent
No.2 for recusal by Ms. Chandrani Sen was accepted and the complaint
was accordingly forwarded to an external member of the Company's ICC
and a communication to that effect was sent to Respondent No.2 by
email dated 30 October 2023 sent at 9.16 pm. The email stated that
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external member of ICC would take up the matter with the ICC (excluding
Ms. Chandrani Sen). Within 23 minutes thereafter, Respondent No.2
received email at 9.39 p.m. on 30 October 2023 from Smt. Rewati
Bhagwat, Director of Rewati Bhagwat Consultancy Services, stating as
under:
On Mon, Oct 30, 2023 at 9:39 PM rewati bhagwat
<[email protected]> wrote:
Dear Sumeeta,
The ICC is in receipt of your complaint dated October 28, 2023, raising
certain allegations against Mr. Anup Vikal. We have reviewed the
allegations and after thorough deliberations between the
members of the ICC it has been determined that the nature of
your allegations do not have a sexual element and it would
therefore not be within the jurisdiction of the ICC to undertake an
inquiry into the contents of your complaint.
The POSH act defines sexual harassment as follows:
a) Physical contact and advances
b) A demand or request sexual favors
c) Sexually coloured remarks
d) Showing pornography
e) Any other unwelcome physical, verbal or non-verbal conduct of
sexual nature
You will appreciate that the nature of allegations does not satisfy
the above.
(emphasis added)
27) Thus, the email dated 30 October 2023 stated that the ICC
had reviewed the allegations and after thorough deliberations between
the members of the ICC, it was determined that the nature of allegations
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did not have a sexual element and that it would not be in the purview of
the ICC to undertake an inquiry into the contents of the complaint. Since
this Court is not going into the merits of the Appeal, it is not necessary
to go into the aspect of time gap between sending of intimation to
Respondent No.2 about forwarding of complaint to ICC and ICC’s email
refusing to take cognizance of the complaint. As of now, it is unknown as
to when exactly the complaint was forwarded by the employer to the ICC
and how the members of ICC deliberated the allegations. It is a matter of
evidence, and this Court refrains itself from making any comments on
the issue of time gap.
28) Thus, by email dated 30 October 2023, the ICC refused to
hold any inquiry into the complaint ruling that the same did not involve
any sexual element. The issue for consideration is whether the decision
of the ICC conveyed vide email dated 30 October 2023 can be challenged
in an appeal filed under Section 18 of the POSH Act.
STATUTORY FRAMEWORK OF POSH ACT
29) To decide the issue as to whether the communication dated
30 October 2023 is a ‘recommendation’ which is capable of being
challenged in an Appeal under Section 18, it would be necessary to take a
quick stock of the statutory scheme of the POSH Act. The expression
'sexual harassment' is defined under Section 2(n) of the POSH Act as
under:
(n) “sexual harassment” includes any one or more of the following
unwelcome acts or behavior (whether directly or by implication)
namely:
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(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or (v) any other unwelcome physical, verbal
or non-verbal conduct of sexual nature;
30) Section 3 of the POSH Act prohibits sexual harassment to a
woman at workplace and enumerates the circumstances which may
amount to sexual harassment and provides thus:
3. Prevention of sexual harassment.—
(1) No woman shall be subjected to sexual harassment at any
workplace.
(2) The following circumstances, among other circumstances, if it
occurs, or is present in relation to or connected with any act or
behavior of sexual harassment may amount to sexual harassment:—
(i) implied or explicit promise of preferential treatment in her
employment; or
(ii) implied or explicit threat of detrimental treatment in her
employment ; or
(iii) implied or explicit threat about her present or future
employment status; or
(iv) interference with her work or creating an intimidating or
offensive or hostile work environment for her; or
(v) humiliating treatment likely to affect her health or safety.
31) Under Section 9 of the POSH Act, an aggrieved woman can
make a complaint of sexual harassment. Section 9 of the Act provides
thus:
9. Complaint of sexual harassment.—
(1) Any aggrieved woman may make, in writing, a complaint of sexual
harassment at workplace to the Internal Committee if so constituted, or
the Local Committee, in case it is not so constituted, within a period of
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three months from the date of incident and in case of a series of
incidents, within a period of three months from the date of last
incident.
Provided that where such complaint cannot be made in writing, the
Presiding Officer or any Member of the Internal Committee or the
Chairperson or any Member of the Local Committee, as the case may
be, shall render all reasonable assistance to the woman for making the
complaint in writing.
Provided further that the Internal Committee or, as the case may be,
the Local Committee may, for the reasons to be recorded in writing,
extend the time limit not exceeding three months , if it is satisfied that
the circumstances were such which prevented the woman from filing a
complaint within the said period.
(2) Where the aggrieved woman is unable to make a complaint on
account of her physical or mental incapacity or death or otherwise, her
legal heir or such other person as may be prescribed may make a
complaint under this section.
32) After complaint of sexual harassment is received by the
internal committee or by the local committee, an attempt for settlement
of the matter can be made through conciliation under Section 10 only on
request made by the aggrieved woman. Section 11 of the POSH Act
provides for conduct of inquiry into the complaint of sexual harassment
and provides thus:
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 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:
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
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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. (2) Notwithstanding anything contained in
section 509 of the Indian Penal Code (45 of 1860), the court may, when
the respondent is convicted of the offence, order payment of such sums
as it may consider appropriate, to the aggrieved woman by the
respondent, having regard to the provisions of section 15.
(3) 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.
(4) The inquiry under sub-section (1) shall be completed within a
period of ninety days.
33) Section 13 of the POSH Act deals with the inquiry report to
be prepared on completion of the inquiry and provides thus:
13. Inquiry report.—
(1) On the completion of an inquiry under this Act, the Internal
Committee or the Local Committee, as the case may be, shall provide a
report of its findings to the employer, or as the case may be, the District
Officer within a period of ten days from the date of completion of the
inquiry and such report be made available to the concerned parties.
(2) Where the Internal Committee or the Local Committee, as the case
may be, arrives at the conclusion that the allegation against the
respondent has not been proved, it shall recommend to the employer
and the District Officer that no action is required to be taken in the
matter.
(3) Where the Internal Committee or the Local Committee, as the case
may be, arrives at the conclusion that the allegation against the
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respondent has been proved, it shall recommend to the employer or the
District Officer, as the case may be—
(i) to take action for sexual harassment as a misconduct in
accordance with the provisions of the service rules applicable to
the respondent or where no such service rules have been made,
in such manner as may be prescribed;
(ii) to deduct, notwithstanding anything in the service rules
applicable to the respondent, from the salary or wages of the
respondent such sum as it may consider appropriate to be paid
to the aggrieved woman or to her legal heirs, as it may
determine, in accordance with the provisions of section 15.
Provide that in case the employer is unable to make such deduction
from the salary of the respondent due to his being absent from duty or
cessation of employment it may direct to the respondent to pay such
sum to the aggrieved woman.
Provided further that in case the respondent fails to pay the sum
referred to in clause (ii), the Internal Committee or as, the case may be,
the Local Committee may forward the order for recovery of the sum as
an arrear of land revenue to the concerned District Officer.
(4) The employer or the District Officer shall act upon the
recommendation within sixty days of its receipt by him.
34) Section 14 of the POSH Act deals with punishment for false
and malicious complaints and false evidence and Section 17 deals with
penalty for publication or making known contents of complaint and
inquiry proceedings. Section 18 provides for a remedy of Appeal in
respect of the recommendations made under Section 13(2) or 13(3)(i) or
(ii) or under Section 14 (1) or (2) or under Section 17 or against non-
implementation of such recommendations. Section 18 of the POSH Act
provides thus:
18. Appeal.—
(1) Any person aggrieved from the recommendations 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 recommendations may
prefer an appeal to the court or tribunal in accordance with the
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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 recommendations.
35) Thus, an Appeal under Section 18 of the POSH Act lies only
against the recommendations made under Section 13(2) or Section 13 (3)
(i) or (ii) or Section 14 (1) or (2) or Section 17 or against non-
implementation of such recommendation. Since POSH Act creates a
statutory right of appeal, the remedy of appeal must be exercised strictly
in accordance with the provisions of the POSH Act and appeal would lie
only against the enumerated recommendations or against non-
implementation of such recommendations. The Appeal under Section 18
of the POSH Act thus, does not lie against every action or decision unless
such action or decision is one of the enumerated recommendations.
36) The word ‘recommendation’ has not been defined under the
POSH Act. However, various provisions of the POSH Act use the word
‘recommendation’. Section 13 of the POSH Act deals with inquiry report
and sub-section (2) thereof provides that when the ICC arrives at a
conclusion that the allegations against the Respondent are not proved, it
can recommend to the employer that no action is required to be taken in
the matter. Thus one of the enumerated recommendations within the
meaning of Section 18 is recommendation qua not taking any action in
the matter under Section 13(2) of the POSH Act.
37) Under Section 13(3) of the POSH Act, when the ICC arises at
a conclusion that allegation against the Respondent has been proved, it
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can make a recommendation to the employer to take an action for sexual
harassment against the Respondent in accordance with the provisions of
Service Rules or in the prescribed manner as well as for deduction from
salary/wages of the Respondent, such sum as considered appropriate.
The recommendations so made under clauses (i) or (ii) of sub-section (3)
of Section 13 are appealable under Section 18 of the POSH Act.
38) Under Section 14 of the POSH Act, a provision is made for
punishment against false or malicious complaint and for giving false
recommendation and under sub-section (2), the ICC, if it arrives at the
conclusion that during the inquiry any witness has given false evidence
or produced any forged, misleading document, it can recommend to the
employer of the witness for taking action in accordance with provisions
of Service Rules. Even the recommendation made by the ICC under sub-
section (2) of Section 14 is appealable under Section 18 of the POSH Act.
39) Appeal under Section 18 also lies against imposition of
penalty under Section 17 of the POSH Act for publication or making
known the contents of the complaint and inquiry proceedings.
40) Having considered the broad statutory scheme of remedy of
appeal under the POSH Act, I proceed to examine the manner in which
the inquiry is conducted by the Industrial Court while deciding the issue
of availability of the remedy of appeal to Respondent No.2 in respect of
communication dated 30 October 2023 by the ICC.
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NON-DECISION OF ISSUE OF MAINTAINABILITY BY THE INDUSTRIAL COURT
41) In the present case, the Industrial Court had taken up only
the application questioning maintainability of the Appeal for decision.
By order dated 12 February 2025 passed in Writ Petition No.1730 of 2025,
this Court had granted liberty to the Petitioners to file applications
questioning maintainability of the Appeal as well as for seeking its
dismissal with further direction to the Industrial Court to defer recording
of evidence till decision of such applications. In terms of the liberty
granted by this Court, Petitioners filed application questioning
maintainability of the Appeal on account of absence of recommendation
under Section 13(2) read with Section 18 of the POSH Act. It appears that
separate applications were filed seeking dismissal of the Appeal on the
ground of the Appeal not exhibiting a cause relating to sexual
harassment. By pursis filed on 20 April 2026, Petitioners requested the
Industrial Court to take up only maintainability application before
hearing the dismissal application. Accordingly, the Industrial Court
began hearing maintainability application. As the hearing on
maintainability application commenced, Respondent No.2 got aggrieved
by such course of action adopted by the Industrial Court and filed Writ
Petition No.5610 of 2026 on 22 April 2026 pleading a grievance that
‘despite the absence of such an order the learned Industrial Court proceeded
to hear only the application challenging maintainability’. Thus, Respondent
No.2 was also fully aware that what was taken up for hearing by the
Industrial Court was only the maintainability application. If any doubt
remained, the same has been clarified by the Industrial Court in
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paragraph 21 of the impugned judgment, in which it has observed as
under:
The respondents filed pursis before this court with prayer to hear and
decide these two applications of maintainability and its dismissal
distinctly and the ratio of maintainability be decided as a preliminary
issue. The appellant has not raised any objection for that. Accordingly,
this court comes to the conclusion to hear and decide the issue of
maintainability on priority basis.
42) As only maintainability application was taken up for hearing
and was heard, the Industrial Court has rightly framed issue relating to
maintainability as under:
Whether the Respondents succeed to show that the present Appeal is
not maintainable under the provisions of POSH Act?
43) However, the findings recorded in the impugned judgment
and order by the Industrial Court would indicate that after framing the
issue of maintainability of Appeal, the Tribunal forgot the remit of
inquiry before it and proceeded to enter into merits of the Appeal. In
paragraph 28 of the judgment it has taken note of point No.1 about
maintainability of Appeal in the eyes of law. However, after going
through the communication dated 30 October 2023 of the ICC as well as
into the complaint made by Respondent No.2, the learned Member
misdirected herself in concluding that Respondent No.2 was working in a
very unhealthy, stressful and uncomfortable environment. The findings
in paragraph 32 of the order read thus:
32) Here, on going through the wordings of the complaint, it is very
much clears that the complainant was working in a very unhealthy,
stressful and uncomfortable environment. The expressions used in
instance 5 by respondent no. 3 to appellant about respondent no. 4 are
offensive and unwelcome in nature.
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44) The Industrial Court thereafter went into the ambit of the
term ‘sexual harassment’ under POSH Act and after analyzing provisions
of Section 11(1) of the POSH Act and Rule 7 of POSH Rules, it has
concluded that there ought to have been a full-fledged inquiry by the
ICC. It has held that summary dismissal of the complaint on the ground
of absence of element of sexual harassment without giving single
opportunity to Respondent No.2 was improper. It therefore held that the
communication of ICC dated 30 October 2023 is required to be set aside.
Thus after embarking upon the journey to decide the maintainability
application, the Industrial Court lost the track and went on to decide the
merits of the Appeal. Findings recorded in paragraph 45 of the impugned
order of the Industrial Court read thus:
45. In the premises of aforesaid discussion and going through the ratio
of cited authorities, this court prominently observed that on receiving
the complaint of appellant about sexual harassment against
respondents no. 3 and 4, ICC (respondent no.2) without being given a
single opportunity of hearing to applicant, directly dismissed her
complaint on the ground that it does not have an element of sexual
harassment.' Without considering the allegations narrated into the
complaint and without following due process of law for conducting
enquiry as contemplated under the Act, the concerned ICC has taken its
own decision of dismissal of complaint. Said act is in the utter disregard
of the principles of natural justice and not acceptable under law.
Considering this factual position, the email report of ICC dated
30.10.2023 is required to set aside. The matter is remanded to ICC with
specific direction to conduct the enquiry by following due procedure
contemplated under Act and by affording due opportunity to all parties
to put their case and complete the proceedings as expeditious as
possible within a period of three months from the receipt of this order.
Both the parties are directed to co-operate for early disposal of the
enquiry proceedings. In view of this observations, the applications
filed by the respondents raising the Issue of maintainability of
present Appeal is hereby dismissed Hence, I answer point no. 1 in the
'Negative. Accordingly, the present appeal is allowed. With this, I
proceed to pass the following order.
(emphasis supplied)
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45) The Industrial Court thereafter proceeded to adjudicate the
Appeal on its merits, overlooking the fact that it had embarked upon an
inquiry into the maintainability of the Appeal. The operative order
passed by the Industrial Court reads thus:
ORDER
The present Appeal is hereby allowed.
2) The applications of respondents filed below Exh. C-7, CA-2, CB-7,
CC-6 & CD-6 about the maintainability of present Appeal are hereby
dismissed.
3) The email report dated 30.10.2023 of the ICC stands quashed and set
aside’
4) The matter is remanded to ICC with specific direction to conduct the
enquiry by following the procedure contemplated under Act and by
affording due opportunity to all parties to put their case and complete
the proceedings as expeditious as possible within a period of three
months from the receipt of this order.
5) Both the parties are directed to co-operate for early disposal of the
enquiry proceedings
46) Thus, the learned Member of the Industrial Court has
committed an egregious error of deciding the Appeal on merits while
taking up for decision the application as to maintainability of Appeal.
More shockingly the Court has not decided the objection as to
maintainability. Thus the error committed in not deciding the objection
of maintainability is further aggravated by deciding the Appeal itself on
merits. Beyond holding that “in view of this observations, the applications
filed by the Respondents raising the issue of maintainability of the present
appeal is hereby dismissed” the learned Member of the Industrial Court
has actually not decided the objection of maintainability. There is no
finding in the entire judgment that communication of the ICC dated 30
October 2023 is a recommendation within the meaning of Section 13(2)
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or that an Appeal against such recommendation is maintainable under
Section 18 of the POSH Act.
47) It is the case of the Petitioners that parties argued only the
issue of maintainability before the Industrial Court. This is sought to be
contested by Dr. Chandrachud by inviting attention of this Court to
written submissions filed by the Petitioners by contending that they have
canvassed submissions on merits of the appeal. I have gone through the
written submissions and it is difficult to hold that Petitioners argued
merits of the Appeal before the Industrial Court. In their written
submissions, they only gave brief background of the nature of complaint
made by Respondent No.2, which does not mean that merits of the
Appeal were argued in any manner before the Industrial Court. The
contention now raised by Respondent No.2 is contrary to the one raised
by her in Writ Petition No.5610 of 2026. It is also contrary to the
observations made by the Industrial Court in paragraph 21 of the
impugned judgment. It has to be therefore held that the Industrial Court
heard the arguments only on the issue of maintainability.
48) The judgment of the Apex Court in Sayeda Akhtar (supra),
relied upon by Dr. Chandrachud in support of his contention that
absence of prejudice on account of canvassing submissions on merits is
inapposite in the present case. It cannot be said, by any stretch of
imagination, that Petitioners were aware of the fact that the Industrial
Court was going to decide the merits of the Appeal. In any case, the
judgment in Sayeda Akhtar (supra) is an authority on the proposition
that mere failure of the Court/Tribunal to frame an issue is not fatal
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when parties know the issue on which they have to address the Court.
The said proposition has no application in the facts of the present case.
49) The Industrial Court has thus completely misdirected itself
in going into merits of the Appeal when it was expected to decide only
the issue of maintainability of the Appeal. The inquiry conducted by the
learned Member of the Industrial Court is perfunctory. The manner in
which the Industrial Court has proceeded to decide the proceedings is
disquieting. This Court expresses its disapproval.
TO REMAND OR TO DECIDE THE OBJECTION OF MAINTAINABILITY?
50) Ordinarily, this Court would have remanded the proceedings
to the Industrial Court for re-adjudication of the issue of maintainability
of the Appeal after noticing that the Tribunal has skirted the said issue.
However, both the sides have canvassed elaborate submissions on the
issues as to whether the impugned communication is a
‘recommendation’ and whether the Appeal is maintainable. Therefore,
this Court put a query to the learned counsel appearing for the
Petitioners as to whether this Court can decide the issue of
maintainability of the Appeal in view of detailed submissions being
heard on the issue. In their usual fairness, Mr. Jagtiani and Mr. Kamat,
after taking instructions, have agreed that this Court can directly decide
the issue of maintainability of the Appeal rather than making an order of
remand on that aspect. Ms. Nalluri has not opposed the suggestion. It is
only on account of the concession made on behalf of the Petitioners that
this Court is not making an order of remand to the Industrial Court for
re-adjudication of issue of maintainability.
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51) To decide the issue of maintainability of the Appeal, it is
first necessary to decide the issue as to whether the communication
dated 30 October 2023 made by the ICC is a ‘recommendation’ within the
meaning of Section 13(2) of the POSH Act.
WHETHER COMMUNICATION OF 30 OCTOBER 2023 IS A ‘RECOMMENDATION’
WITHIN THE MEANING OF SECTION 13(2) OF THE POSH ACT
52) There is a serious dispute between the parties as to whether
the communication dated 30 October 2023 can be treated as a
'recommendation'. According to the Petitioner, it is mere threshold
rejection of complaint. It is the case of the Petitioners that the
recommendation under Section 13(2) for not taking any action in the
matter can be made by the Internal Committee only after completion of
inquiry under the POSH Act. It is contended by them that since the
inquiry itself is not conducted by the ICC in the present case,
communication dated 30 October 2023 cannot be treated as a
‘recommendation’ capable of being subjected to the remedy of appeal
under Section 18 of the POSH Act. On a standalone reading of provisions
of Section 13(1) and (2) of the POSH Act, what is sought to be suggested
on behalf of the Petitioners, may appear to be correct. A
recommendation under Section 13(2) can be made only after conduct
and completion of inquiry under the POSH Act. This is because after
completion of the inquiry, the ICC needs to provide a report of findings
to the employer within a period of 10 days from the date of completion
of report and such report also needs to be made available to the
concerned parties. The recommendations envisaged in sub-section (2)
and (3) have to be necessarily made in the report so prepared and
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submitted under Section 13(1) of the POSH Act. Therefore, one may
contend that unless inquiry under the POSH Act is conducted and
concluded by the ICC, it is neither possible to make a report within the
meaning of Section 13(1) nor such report can contain any
recommendation as envisaged under sub-sections (2) or (3) of Section
13.
53) However, in my view, isolated reading of provisions of
Section 13 of the POSH Act causes violence to the legislative object
behind enacting the statute. Provisions of Section 13 must necessarily be
read with provisions of Section 11 of the POSH Act. Under Section 11 of
the POSH Act, there is a mandate to the ICC to conduct the inquiry. It is
not an option left to the ICC to not conduct an inquiry under Section
11(1) of the POSH Act. The word used under Section 11 (1) is ‘shall’.
Section 11(1) of the POSH Act provides that “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”. Thus, holding
of inquiry under Section 11(1) is mandatory and not optional for the
internal committee. Considering the legislative object of POSH Act, it is
not possible to read the word ‘shall’ as ‘may’ as the Legislature has not
intended to leave conduct of inquiry at the discretion of the ICC.
54) Thus, when a complaint of sexual harassment is received,
the internal committee is bound by provisions of Section 11 to conduct
the inquiry. Section 11(1) of the POSH Act provides that the inquiry into
a complaint of sexual harassment can be made ‘in accordance with the
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provisions of the service rules applicable to the respondent and where no
such rules exist, in such manner as may be prescribed ’. However this
requirement of manner of conduct of inquiry does not control the
mandate for the ICC to conduct the inquiry. Therefore, for deciding
whether ICC's decision is a ‘recommendation’ or not, a reverse
engineering method cannot be adopted by finding out (i) whether service
rules or the prescribed manner is followed (ii) and therefore whether
there is an inquiry under Section 11(1) or not. Even if the service rules or
the manner prescribed is not followed for giving response on the
complaint, the response will still have to be treated as a
‘recommendation’ for the limited purpose of making available the
remedy of appeal to the aggrieved woman. Therefore, it is not necessary
to delve deeper into the manner in which the ICC has conducted the
inquiry in the facts of the present case, at this juncture. That issue may
be relevant for determining the merits of the Appeal.
55) On combined reading of Sections 11 and 13 of the POSH Act,
every decision taken by the Internal Committee on a complaint of sexual
harassment would form a ‘recommendation’ within the meaning of
Section 13(2) or 13(3). If the Internal Committee does not conduct
inquiry in the manner prescribed under Section 11, the same may vitiate
its decision/recommendation. However, mere non-conduct of inquiry in
respect of complaint of sexual harassment by the Internal Committee
would not save its decision from the ambit of the expression
‘recommendation’ under Section 13 of the POSH Act. Even if Internal
Committee does not conduct an inquiry but still makes a decision on a
complaint of sexual harassment, such decision would be a
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‘recommendation’ within the meaning of Section 13(2) or (3) of the
POSH Act. To illustrate, upon receipt of a complaint of sexual
harassment, the ICC writes to the employer to terminate the services of
the Respondent-employee without holding inquiry, such course of action
of the committee would assume characteristic of a ‘recommendation’
and the mere vice of non-holding of inquiry would not save such action
from the ambit of the expression ‘recommendation’ used under Section
13(3) of the POSH Act. On the same analogy, if the Internal Committee,
upon receipt of complaint of sexual harassment, rules that the complaint
does not constitute sexual harassment of the complainant, such ruling
by the Internal Committee would also assume characteristic of a
recommendation made under Section 13(2) of the POSH Act. This is
because the employer acts on such decision of the Internal Committee
and does not take any further action in the manner as per Section 13(2)
of the POSH Act. Therefore, a ruling by the Internal Committee that the
complaint does not constitute sexual harassment, which is arrived at
without holding any inquiry, would still be a ‘recommendation’ within
the meaning of Section 13(2) of the POSH Act.
56) The word ‘recommend’ needs to be construed in the context
of provisions of the POSH Act. Therefore it is not necessary to consider
the ratio of judgment of Delhi High Court in Union of India Versus.
Telecom Regulatory Authority Of India (supra) relied upon by Mr.
Naphade which deals with the meaning of the expression “recommend”
in the context of provisions of Telecom Regulatory Authorities Act, 1997.
The judgment is rendered by the Delhi High Court in the context of a
recommendation made by TRAI for revocation of license and the issue
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before the Court was whether such recommendation is mandatory or
advisory. Here the issue is entirely different viz. whether the ICC has
made a recommendation or not.
57) One can also construe and interpret provisions of Sections
11, 13 and 18 of the POSH Act in the context of availability of remedy to
the aggrieved person. In the illustration discussed above, if the Internal
Committee writes to the employer for termination of services of
Respondent-employee upon mere receipt of complaint of sexual
harassment, without holding any inquiry, if such writing by the ICC is
not construed as a recommendation under Section 13(3), the delinquent
employee would be without a remedy in respect of such decision of the
ICC. On the other hand if a ‘recommendation’ is made after conducting
inquiry, the delinquent employee has the remedy of filing appeal under
Section 18 of the POSH Act. If what is sought to be canvassed by
Petitioners is accepted, in such a scenario, the ICC violating provisions
of Section 11(1) and making direct communication to the employer for
taking of adverse action, would save itself from judicial scrutiny, on
account of non-availability of remedy as compared to the ICC following
mandate of Section 11 (1) and making a recommendation after holding
of a proper inquiry. The legislative object is not to reward the Internal
Committee which violates mandate of Section 11(1) for making its
decision challenge free. Thus, when the Internal Committee violates
mandate of Section 11(1) and makes a decision without holding inquiry,
which may result in adverse action against the Respondent-employee,
some remedy has to be provided to the affected employee by treating
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such decision of the Internal Committee as a recommendation within
Section 13(3) of the POSH Act.
58) On a similar analogy when the Internal Committee violates
the mandate under Section 11 of the POSH Act by not conducting inquiry
into the complaint of sexual harassment and rules that the complaint
does not have any sexual element, the ruling to that effect made by the
ICC without holding inquiry will have to be necessarily treated as a
‘recommendation’ under Section 13(2) with a view to provide a remedy
to the Complainant under Section 18 of the POSH Act. Otherwise,
appellate scrutiny of ICC's decision can be easily avoided by rejecting
every complaint at the threshold.
POSH ACT: WELFARE LEGISLATION
59) The legislative object underlying the enactment of the POSH
Act must be borne in mind. As rightly contended by Dr. Chandrachud,
the POSH Act is a piece of social welfare legislation. The POSH Act is
enacted by the Legislature recognizing the legislative void, which was
highlighted by the Apex Court in its seminal judgment in Vishakha and
Ors. vs. State of Rajasthan and Ors. 20. The intent of the Act is to uphold
women's right to equality under Articles 14 and 15 and a right to a
dignified life under Article 21 of the Constitution of India. The Act
imposes a legal duty on employers to prohibit and prevent sexual
harassment of women by ensuring that women at every workplace have
open and effective access to a mechanism for the redressal of complaints
of sexual harassment. The Act is aimed at bringing about safety and
20 AIR 1997 SC 3011
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accountability in the workplace. Since POSH Act is a social welfare
legislation, it must be interpreted accordingly. It would be apt to take
into consideration the Preamble of the Act:
An Act to provide protection against sexual harassment of women at
workplace and for the prevention and redressal of complaints of sexual
harassment and for matters connected therewith or incidental thereto.
60) In Dr. Sohail Malik (supra) the Apex Court has ruled against
narrow interpretation of provisions of the POSH Act by holding the same
as a social welfare legislation and has held in paragraph 54 of the
judgment as under:
54. Keeping in mind the object behind the enactment of the POSH Act,
if the aggrieved woman had to approach the ICC constituted at the
workplace of the 'Respondent' for every third-party incident, it would
fall short of the aforesaid object. The ICC at the workplace of the
'Respondent' would be tasked with inquiring into an incident that may
or may not have occurred on their employer's premises or in relation to
their employer's work environment. A narrow interpretation of
provisions of the POSH Act, in order to hold that only the ICC of the
workplace of the 'Respondent' has jurisdiction to inquire into
complaints against him, irrespective of where the workplace of the
aggrieved woman is or where the alleged act of sexual harassment took
place, would undermine the POSH Act's remedial social welfare intent
since it would create significant practical hurdles for the aggrieved
woman.
61) It is a settled canon of statutory interpretation that a
remedial statute must receive a liberal construction, as opposed to a
penal statute, which calls for strict construction. In cases of remedial
statutes or social welfare legislation, if there is any doubt, the same must
be resolved in favour of the class of persons for whose benefit the statute
is enacted. It would be apposite to make a reference to the judgment of
the Apex Court in Regional Provident Fund Commissioner Versus.
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Hooghly Mills Company Limited (supra) in which it is held in paragraphs
24, 25 and 26 as under:
24. If we look at the modern legislative trend we will discern that there
is a large volume of legislation enacted with the purpose of introducing
social reform by improving the conditions of certain class of persons
who might not have been fairly treated in the past. These statutes are
normally called remedial statutes or social welfare legislation, whereas
penal statutes are sometime enacted providing for penalties for
disobedience of laws making those who disobey, liable to
imprisonment, fine, forfeiture or other penalty.
25. The normal canon of interpretation is that a remedial statute
receives liberal construction whereas a penal statute calls for strict
construction. In the cases of remedial statutes, if there is any doubt, the
same is resolved in favour of the class of persons for whose benefit the
statute is enacted, but in cases of penal statutes if there is any doubt
the same is normally resolved in favour of the alleged offender.
26. It is no doubt true that the said Act effectuates the economic
message of the Constitution as articulated in the directive principles of
State policy. Under the directive principles the State has the obligation
for securing just and humane conditions of work which includes a living
wage and decent standard of life. The said Act obviously seeks to
promote those goals. Therefore, the interpretation of the said Act must
not only be liberal but it must be informed by the values of the directive
principles. Therefore, an awareness of the social perspective of the Act
must guide the interpretative process of the legislative device.
62) In my view therefore, provisions of POSH Act must not only
be interpreted liberally but in the event of any difficulty, the same must
be interpreted in favour of class of persons for whose benefit the statute
is enacted. Therefore, a plain and strict interpretation of Sections 13 and
18 of the POSH Act would result in a situation where an aggrieved
woman is rendered remediless against a decision of the ICC, essentially
on account of ICC’s failure to conduct an inquiry. In such circumstances,
the Courts ought to adopt a liberal interpretation of the provisions of the
POSH Act so as to give the character of a ‘recommendation’ to a decision
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of the ICC holding that the complaint does not disclose any sexual
element.
MAINTAINABILITY OF APPEAL
63) I have already held that the communication of ICC dated 30
October 2023 that the complaint does not have sexual element
tantamounts to a ‘recommendation’ within the meaning of Section
13(2). I have not accepted the interpretation placed on provisions of
Sections 11, 13 and 18 of POSH Act by Mr. Jagtiani and Mr. Kamat while
holding that the impugned communication is a ‘recommendation’.
64) Once the communication of ICC dated 30 October 2023 is
held to be a ‘recommendation’ within the meaning of Section 13(2) of
the POSH Act, the remedy of filing appeal against the same is available
to Respondent No. 2 under Section 18 of the POSH Act. In that sense, the
objection as to maintainability of appeal becomes unfounded.
65) Before concluding the issue of maintainability of Appeal, it
would be necessary to deal with some of the points raised by Mr. Jagtiani.
He has contended that the word “complaint” appearing in Section 11 of
the POSH Act must necessarily be a complaint of sexual harassment. I
agree with the contention. Any complaint not involving an allegation of
sexual harassment cannot be inquired by the ICC. Existence of complaint
of sexual harassment is a jurisdictional fact for exercise of jurisdiction by
the ICC. His reliance on judgments of Kerala High Court in Hareesh M.S.
and Dr. Prasad Pannian in this regard is apposite. Only a complaint of
‘sexual harassment’ can be entertained by the ICC for the purpose of
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initiating an inquiry. What is sought to be illustrated by Mr. Jagtiani is a
case where the employer does not refer the case to the ICC on the ground
that the same does not involve an element of sexual harassment. To
illustrate, a woman employee is not granted promotion or is punished for
commission of misconduct and files a complaint and there is no
allegation of sexual harassment, the same need not even be referred to
the ICC. However, the issue as to whether complaint involves element of
sexual harassment or not can be considered and decided by the Court
while deciding the Appeal under Section 18 of the POSH Act. The Court
can decide whether the Complaint makes out a case of sexual
harassment and if it reaches the conclusion that it does not, it can
dismiss the Appeal by upholding the decision of the ICC. In every case,
where the ICC rejects the complaint without holding an inquiry, it is not
necessary that the Court must mechanically make on order of remand to
the ICC for conduct of inquiry. It is only when the Court arrives at a
conclusion that the complaint contains an element of sexual harassment
and if after reaching that conclusion the Court finds that the ICC has not
conducted any inquiry, it can direct conduct of inquiry by the ICC.
66) Therefore, in the context of issue of maintainability of
Appeal, the issue as to whether the complaint makes out a case of sexual
harassment or not takes a backseat and becomes irrelevant. Once a
complaint is made alleging sexual harassment and the same is forwarded
by the employer to the ICC and the ICC, upon deliberation amongst
members, rules that the complaint does not involve an element of sexual
harassment, the aggrieved woman must have some remedy against such
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decision of the ICC. The statute has provided the remedy of appeal under
Section 18 of the POSH Act.
67) Also, the present case does not involve eventuality of the
employer refusing to take cognizance of the complaint at all. The
employer has taken cognizance of the complaint and the same has been
forwarded to the ICC. The reference was in fact made by the employer to
an external ICC member since there was a conflict involved qua one of
the members of ICC. Accordingly, the ICC headed by an external
member, took cognizance of the complaint and has rendered its decision
on the same. Its conclusion is a recommendation as held above and the
same would accordingly be appealable. In the Appeal, the Industrial
Court would decide whether the ICC is right in concluding that the
complaint does not involve an element of sexual harassment.
68) It is therefore held that Appeal under Section 18 of POSH
Act is maintainable against the communication dated 30 October 2023 of
the ICC.
WHETHER AVAILABILITY OF WRIT REMEDY CAN BE A REASON FOR DENYING
APPELLATE REMEDY?
69) Mr. Jagtiani and Mr. Kamat have strenuously contended that
the theory of absence of remedy does not get attracted in the present
case, since the aggrieved complainant can always have recourse to writ
jurisdiction of High Court in the event of ICC not taking cognizance of
the complaint. Reliance is placed on judgment of Karnataka High Court
in X Versus. Internal Committee Anil Technologies Pvt. Ltd. (supra). In
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case before the Single Judge of Karnataka High Court, Petitioner therein
was a victim of sexual harassment at the hands of a driver of a OLA Taxi.
She was aggrieved by the inaction on the part of ICC of OLA in not
considering her request to inquire in the Complaint against the driver on
the purport of it lacking jurisdiction to inquire into the complaint as the
driver was not an employee of OLA. She invoked jurisdiction of the High
Court under Article 226 of Constitution of India. The Karnataka High
Court invoked the doctrine of public duty and by relying on judgment of
the Apex Court in St. Mary’s Education Society Versus. Rajendra
Prasad Bhargava21 held that Writ Petition against a private entity is
maintainable if it is shown that it owes a duty and obligation to public
involving public law elements. The Karnataka High Court held in
paragraphs 25 and 27 of the judgment as under:
25. Though it is vehemently urged on behalf of Petitioner that since the
OLA is into the business of providing transport service of such a huge
magnitude across the country it partakes the character of it discharging
a public function, which is denied with equal vehemence by the learned
counsel for the ICC and OLA, this court is of the considered view that,
in the light of statutory obligations cast on OLA of constituting the
Internal Complaint Committee for enquiring into the complaints of
sexual harassment and taking further actions under the provisions of
the PoSH Act, 2013 referred to hereinabove as well the obligations
imposed under Rules 2016 which is undoubtedly a duty and obligation
which it owe towards the public at large, ICC and OLA cannot be heard
to say that they are not discharging any `public duty' involving `public
law element' making them amenable to Article 226 of the Constitution
of India. It is now well settled that sexual harassment constitutes
violation of various fundamental rights of women guaranteed under
Articles 14, 15, 19(1)(g) and 21 of the Constitution of India which may
be enforced against private persons with corresponding duty imposed
by a statue.
27. For the above reasons and for the purpose and to the extent
mentioned above this Court is of considered view that the writ petition
under Article 226 is maintainable. Point No. 1 is answered accordingly.
21 2023 (4) SCC 498
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However, in X Versus. Internal Committee Anil Technologies Pvt. Ltd.,
there was a difficulty in identifying the employer who could be mandated
to conduct the inquiry of sexual harassment. Therefore, the observations
by the Karnataka High Court about maintainability of a writ petition
under Article 226 of the Constitution are made in that context. The case
did not involve challenge to the ruling by the ICC that the complaint did
not involve element of sexual harassment. Therefore it is difficult to
accept the proposition that in every case, a woman aggrieved by the
decision of ICC of a private employer must approach the High Court by
filing a writ petition.
70) In a given case, the High Court may entertain a Writ Petition
filed under Article 226 of Constitution of India by an aggrieved
complainant where the employer or ICC does not take cognizance of
complaint of sexual harassment, by extending its long arms by invoking
the concept of involvement of public duty. The issue in the present case
however is not about availability of writ remedy to the aggrieved woman.
The issue is whether the remedy of appeal under Section 18 of POSH Act
is available or not. Therefore, a mere possibility of High Court
entertaining a writ petition against rejection of complaint by the ICC at
the threshold, cannot be a factor relevant for deciding whether the
remedy of Appeal under Section 18 of POSH Act is available or not. To
paraphrase, the issue of availability of remedy of appeal under Section 18
of POSH Act cannot be determined based on whether a High Court would
entertain challenge to the decision of ICC or not. A High Court, in its
plenary writ jurisdiction, may entertain a direct challenge to ICC’s
decision by ignoring the aspect of availability of alternate remedy of
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appeal in a given case. That does not mean that the factor of
entertainability of writ petition by the High Court would be relevant for
deciding the issue of availability of remedy of appeal under Section 18 of
POSH Act.
71) Also, the remedy of appeal is a much broader remedy
created under the statute as compared to a writ remedy under Article 226
of Constitution of India, which is discretionary. More importantly, the
present case does not involve refusal to take cognizance of the
complaint; rather, it concerns a specific determination by the ICC that
the complaint does not involve any sexual element. The communication
by ICC on 30 October 2023 has already been reproduced above. The same
shows deliberations made by the members of the ICC on the complaint
submitted by Respondent No.2. The communication itself states that the
conclusion reached by the ICC that ‘the nature of your allegations do not
have a sexual element’ is arrived at after thorough deliberations between
the members of the ICC. The communication itself uses the word ‘it has
been determined that’. Thus, what is communicated to Respondent No.2
on 30 October 2023 is a ‘decision of the ICC’ that the complaint does not
have a sexual element.
72) Ordinarily, the decision of complaint not containing sexual
element needs to be arrived at after holding an inquiry under Section 11
of the POSH Act. However, in the present case such decision is rendered
by the ICC without holding any inquiry. As observed above, the folly
committed by ICC does not enure to the benefit of Respondents in the
complaint so as to deny the remedy of appeal to the Complainant. The
decision in the present case communicated vide email dated 30 October
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2023, is a recommendation within the meaning of Section 13(2) of the
POSH Act. In such a situation it would not be appropriate to deny the
remedy of appeal on a specious plea that Respondent No.2 could have
tried her luck in approaching the High Court under Article 226 of the
Constitution of India.
JUDGMENTS CITED BY PARTIES
73) The judgments of Kerala High Court relied upon by Mr.
Jagtiani in Hareesh M.S. and Dr. Prasad Pannian are not authorities on
the principle that a remedy of appeal is not available when ICC decides
to hold that the complaint does not have a sexual element in it. In
Hareesh M.S. the Petitioner therein had challenged the proceedings
initiated by the ICC by petitioning the Kerala High Court. After going
through the complaint, the learned Single Judge of the Kerala High Court
held in paragraphs 8, 12 and 14 of the judgment as under:
8. ICC is only empowered to recommend if it finds the behaviour of the
employee amounts to sexual harassment atworkplace under the
provisions of Sexual Harassment of Women at workplace (Prevention,
Prohibition and Redressal) Act, 2013 [hereinafter referred to as POSH
Act, 2013]. The ICC does not have the power to impose any
punishment. If the ICC finds that the complaint has no substance, it
cannot impose punishment for a false complaint. However, the power
to decide whether an allegation of sexual harassment is made or not is
solely the domain of the ICC, and this court may not interfere with the
proceedings of the ICC at this stage.
12. The complaint that has been re-produced above does not have an
allegation of 'physical contact and advances, a demand or request of
sexual favour or making sexually coloured remarks or showing
pornography or any other unwelcome physical, verbal or non-verbal
conduct of sexual nature'. Even if the complaint is believed to be
correct, the only allegation is that the petitioner tried to record the
conversation and he hurled abuses on the 3rd respondent and other
employees who were present there at the cabin of the petitioner. The
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complaint is about the language used by the petitioner and the alleged
insult caused to the 3rd respondent.
14. When the complaint/allegation does not constitute "sexual
harassment" as defined under Section 2(n) of the POSH Act, 2013, the
jurisdictional fact for taking cognizance on such a complaint and
issuing notice to the petitioner is missing. Therefore, this complaint
cannot be proceeded with under the provisions of the POSH Act, 2013.
74) It must be observed that the judgment of the Kerala High
Court in Hareesh M.S. does not contain elaborate discussion of
provisions of Sections 11 and 13 of the POSH Act. Even before ICC could
have conducted an inquiry into the complaint, the High Court went into
the contents therein and ruled that the complaint/allegation did not
constitute sexual harassment as defined under Section 2(n) of the POSH
Act. The judgment rendered in the peculiar facts of that case cannot be
cited in support of an abstract proposition when ICC rules that there is
no sexual element in the complaint, the complainant would not have the
remedy of appeal under Section 18 of the POSH Act.
75) Mr. Jagtiani has relied on judgment of Division Bench of
Kerala High Court in Dr. Prasad Pannian (supra) in which the Division
Bench has answered a reference after noticing the conflict in the two
Single Judge Bench judgments. The conflict was noticed in judgment of
the Single Judge in Anil Rajgopal Versus. State of Kerala22, in which it
was held that every act should be connected with and must have relation
to the act of behavioral sexual harassment. On the other hand, in the
case in which reference was made, another learned Single Judge did not
agree with the proposition in Anil Rajgopal (supra), held that the acts of
behavior enumerated under Section 2(n) of POSH Act are not exhaustive
22 2017 (5) KHC 217
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and that therefore even acts outside Section 2(n) can be brought within
the purview of the POSH Act. The Division Bench upheld the view in
Anil Rajgopal and held that the complaint must be a complaint of sexual
harassment at the workplace. Therefore, beyond the proposition that
only a complaint of sexual harassment can be entertained by ICC, the
judgment of Division Bench of Kerala High Court in Dr. Prasad Pannian
is not of much relevance to the issue involved in the present case.
76) Mr. Jagtiani has also relied on judgment of this Court in
ABC Versus. Internal Complaints Committee, Akasa Air (supra) in
which a Single Judge of this Court has held in paragraph 33 of the
judgment as under:
33. In my considered view, a distinction would be required to be drawn
in cases where the ICC refuses to discharge statutory duty to inquire
into the complaint of sexual harassment in accordance with the
provisions of the POSH Act and Rules therein and thereby fails to
discharge its duty and obligation to the public at large created by a
statutory regime, and the cases where the ICC allegedly conducts the
inquiry not in conformity with the provisions of the Act and the rules
and the principles of natural justice. In the later case, the infraction of
the procedure or the transgression of the jurisdiction, or for that
matter, the perversity in the findings, would be the matters which can
be legitimately raised before the Appellate Authority. The legality,
propriety and correctness of the findings recorded by ICC would be
examined by the Appellate Authority. An incorrect finding or defect in
procedure would not necessarily amount to failure to discharge a public
duty. At best, that would be an error within the jurisdiction. Thus, I am
not inclined to accede to the submissions on behalf of the petitioner
that, in the facts of the case, the writ petition under Article 226 of the
Constitution of India would be maintainable against respondent No. 1
as it was discharging a public duty.
77) This Court has thus distinguished between cases where ICC
refuses to discharge statutory duty to inquire into the complaint of
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sexual harassment and the cases where ICC conducts inquiry not in
conformity with provisions of the POSH Act. This Court held that, in the
latter case, an infraction of procedure, a transgression of jurisdiction, or
even perversity in the findings would be matters that could legitimately
be raised before the Appellate Authority. This finding is read by Mr.
Jagtiani to mean as if in the former cases the remedy of appeal is not
available. However, the judgment does not specifically state so. In fact
the present case would also fall in the latter category as it is the
complaint of Respondent No.2 that the decision is rendered by ICC in
violation of principles of natural justice. Therefore, reliance by
Petitioners on judgment of this Court in ABC Versus. Internal
Complaints Committee, Akasa Air (supra) is inapposite.
78) While the judgments relied upon by the Petitioners do not
decide the issue of availability of remedy of appeal under Section 18 of
the POSH Act, there are few decisions which do tend to suggest that the
remedy of appeal can be exercised when the employer rules that there is
no element of sexual harassment in the complaint.
79) Mr. Naphade has relied on order of Division Bench of this
Court in Poonam Vijay Thakkar. In case before the Division Bench of
this Court in Poonam Vijay Thakkar (supra) a communication was
addressed by the employer that no action was required to be taken on the
complaint of sexual harassment, which communication was subject
matter of challenge in a writ petition filed by the complainant.
Maintainability of Writ Petition was questioned by employer by referring
to the provisions of Section 18 of the POSH Act. The case thus involved a
converse situation where a directly filed Writ Petition under Article 226
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of the Constitution of India was opposed by the employer contending
that there is statutory remedy of appeal under Section 18 of the POSH
Act. Though the order does not contain elaborate discussion of statutory
scheme of POSH Act, this Court has upheld the remedy of appeal under
Section 18 of the POSH Act even against order refusing to take
cognizance of complaint of sexual harassment. This Court has held in
paragraphs 2, 3, 7.1 and 11 of the order as under:
2. This petition has been filed under Article 226 of the Constitution of
India assailing the legality and validity of the communication dated
17th March, 2020, whereby the petitioner was informed by respondent
No. 1 that no action was required to be taken on her complaint alleging
sexual harassment upon her by respondent No.2 and thereby dismissing
her complaint of sexual harassment by respondent No.2 under the
Sexual Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013 (briefly "the Act" hereinafter).
3. We find from the order dated 11th March, 2021 that learned counsel
for respondent Nos. 1, 3 and 5 had raised objection as to maintainability
of the writ petition and in this connection has filed a short affidavit.
Learned AGP on the other hand had pointed out that there is provision
for appeal under section 18 of the Act.
7.1 From the above, we find that any person aggrieved from the
recommendations 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 sub-section (2) of section 14 or section 17 or non-implementation
of such recommendations may preferred an appeal to such Court or
Tribunal and in such manner as may be prescribed. As per sub-section
(2), such appeal is required to be preferred within a period of 90 days of
the recommendations.
11. That being the position, we are of the view that petitioner may avail
her remedy in terms of section 18 of the Act read with rule 11 of the
Rules by filing appeal before the Industrial Court at Mumbai. It would
be open to the petitioner to seek condonation of delay in filing the
appeal in which event the appellate authority, may consider the period
spent in pursuing the writ petition before this Court as well as the
condition prevailing in the State on account of COVID-19 pandemic.
80) In Sharanjeet Kaur Division Bench of Delhi High Court has
dealt with a case where Single Judge had dismissed Writ Petition filed by
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the Complainant challenging closure of her complaint on account of
availability of alternate remedy of filing Appeal under Section 18 of
POSH Act. The Complainant contended that no fact finding inquiry had
taken place into her complaint and that therefore remedy of appeal was
not available to her. The Division Bench however rejected the contention
and held in paragraph 6 of the judgment as under:
6. After hearing the appellant, this Court is of the view that the
appellant's submission that without any inquiry, an appeal cannot lie is
misplaced as the recommendations made by ICC under Section 13(2) of
the POSH Act in the present case is appealable to the Court or Tribunal
in accordance with Section 18 of the POSH Act. Further, it is apparent
from the order dated 16th March, 2020 that an inquiry was conducted
by the ICC into the appellant's complaint and the complaint was not
simply closed but disposed of by the ICC as closed .
81) Thus in Sharanjeet Kaur (supra) Division Bench of Delhi
High Court has held that where complaint of sexual harassment is
dismissed without conducting fact finding inquiry, remedy of filing
Appeal under Section 18 of POSH Act would still be available.
82) Thus there is no direct judgment to support the case of the
Petitioners that the remedy of appeal under Section 18 of POSH cannot
be exercised against decision of the ICC holding that the complaint does
not involve an element of sexual harassment. On the other hand, there
are couple of judgments which do support the conclusion drawn by me
that the remedy of appeal under Section 18 of POSH Act would be
available to the aggrieved woman when the ICC makes a decision that
the complaint does not involve an element of sexual harassment. Also
this Court has made independent interpretation of provisions of POSH
Act for arriving at a conclusion that the remedy of Appeal is available.
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83) The conspectus of above discussion is that Respondent No.2
has the remedy of filing Appeal under Section 18 of the POSH Act against
the impugned communication of ICC vide email dated 30 October 2023.
The Appeal preferred by Respondent No.2 is thus perfectly maintainable
and all applications filed by Petitioner questioning maintainability of the
Appeal deserve to be dismissed.
CORRECTNESS OF ORDER ALLOWING THE APPEAL AND REMANDING THE
PROCEEDINGS TO ICC
84) Even though this Court has held that the Appeal preferred
by Respondent No.2 is maintainable under Section 18 of POSH Act, the
course of action adopted by the Industrial Court in deciding merits of the
Appeal is clearly erroneous. As observed above, parties did not argue
merits of the Appeal and had confined their arguments only on the issue
of maintainability thereof. The Industrial Court itself had taken only the
issue of maintainability of Appeal for consideration, heard the parries on
the issue of maintainability, but misdirected itself in going into merits of
the Appeal. To this extent, the impugned judgment and order of the
Industrial Court deserves interference. It is elementary that when an
application as to maintainability of proceedings is taken up for decision,
Courts or Tribunals cannot go into the merits of the proceedings
especially without putting parties to notice that merits would also be
decided. It is like the Court, while deciding the application for rejection
of Plaint under Order 7 Rule 11 of the Code, allows the Suit on merits.
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85) Perusal of the order of the Industrial Court would indicate
that it has not recorded a positive finding that the complaint involves an
element of sexual harassment. Mere finding that that the expression
used are offensive and unwelcome in nature is not sufficient. It is thus
noted that the Industrial Court has mechanically directed remand of
proceedings of the ICC. There is no determination by the Industrial
Court as to whether the complaint can be treated as the one involving
sexual harassment or not. Ofcourse a detailed fact finding inquiry is not
expected at this stage. But as observed above, complaint of sexual
harassment constitutes jurisdictional fact for conduct of inquiry by the
ICC. It is only after the Industrial Court arrives at a conclusion that upon
plain reading of the complaint that the same involves an element of
sexual harassment that a detailed fact finding inquiry can be directed to
be conducted by the ICC. Petitioner must be granted an opportunity to
argue before the Industrial Court that the complaint does not involve
any element of sexual harassment. The finding that the expressions used
are offensive and unwelcome in nature is without affording an
opportunity to the Petitioner. Petitioner did not know that the Industrial
Court was to go into the merits of the Complaint. They need to be
granted an opportunity to prove that the allegations in the complaint do
not involve sexual harassment of Respondent No.2. For that purpose, the
Appeal deserves to be remanded to the Industrial Court.
86) I am also not impressed by submission of Dr. Chandrachud
that when the Trial Court dismisses the Suit on a preliminary point and if
Appellate Court reverses the findings of Trial Court on that point, it is
open to the Appellate Court to remand the matter back to the Trial Court
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by having recourse to provisions of Order 41 Rule 23 of the Code. The
submission of Dr. Chandrachud is premised on the footing that the ICC
had rejected the complaint on preliminary point and that therefore while
reversing the decision of ICC on preliminary point, it was open for the
Industrial Court to remand the proceedings to ICC for decision of other
issues. Provisions of Order 41 Rule 23 of the Code provides thus:
23. Remand of case by Appellate Court.
Where the Court from whose decree an appeal is preferred has disposed
of the suit upon a preliminary point and the decree is reversed in ap-
peal, the Appellate Court may, if it thinks fit, by order remand the case,
and may further direct what issue or issues shall be tried in the case so
remanded, and shall send a copy of its judgment and order to the Court
from whose decree the appeal is preferred, which directions to re-admit
the suit under its original number in the register of civil suits, and pro-
ceed to determine the suit; and the evidence (if any) recorded during
the original trial shall, subject to all just exceptions, be evidence during
the trial after remand.
87) However in the present case, provisions of Order 41 Rule 23
of the Code are wholly inapplicable. In the context of the Code, the
present Petitions are like second appeals over the decision of the
appellate court in which the decision of reversal of finding of lower court
on preliminary issue is challenged. This Court is not satisfied by the
decision making process of the Industrial Court and the proceedings are
being remanded to the Industrial Court for fresh decision of the Appeal.
Therefore, reliance by Dr. Chandrachud on provisions of Order 41 Rule
23 of the Code as well as judgment of the Apex Court in J. Balaji Singh
(supra) is inapposite.
88) As of now this Court is only remanding the proceedings to
the Industrial Court for re-adjudication of the Appeal. This Court is not
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deciding the merits of decision of the ICC. Therefore, it is not necessary
to go into the contention raised by Respondent No. 2 that the element of
sexuality in the complaint is a matter of perception. Therefore, it is
unnecessary at this stage to consider the ratio of judgments in
Additional District and Session Judge 'X' and Apparel Export
Promotion Council. I am also not going into the issue of expansive
definition of the term ‘sexual harassment’ in support of contention of
Respondent No. 2 that the allegations in the Complaint constitute sexual
harassment. Therefore, it is also not necessary to consider the judgment
of the Madras High Court in Hcl Technologies Limited Rep. By Mr.
Nerwin Dhanraj Versus. N. Parsarathy. All these contentions can be
decided by the Industrial Court.
PLEA FOR SUSTAINING THE ORDER OF REMAND OF INQUIRY TO ICC
89) Faced with the twin errors in the Order of the Industrial
Court where the order does not record a single reason for rejecting
maintainability application and where the Court has proceeded to decide
the Appeal itself while taking up maintainability application for
decision, it is urged on behalf of Respondent No. 2 that the impugned
Order passed by the Industrial Court actually serves the ends of justice
and that therefore the same need not be disturbed. It is submitted that
all that is envisaged in the Order is that there would be proper inquiry by
the ICC after affording due opportunity to both the sides. It is therefore
urged that the Order may not be disturbed even if this Court arrives at a
conclusion that the maintainability applications are not properly decided
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or that the Tribunal has erred in deciding the merits of the Appeal while
taking up the maintainability issue.
90) The plea here is twofold. Firstly, the Order is sought to be
saved from the vice of failing to record reasons for reaching the
conclusion for rejecting the maintainability objection. Secondly, the
Order is sought to be saved from the vice of going directly into the issue
of merits of the Appeal by contending that the Order ultimately is just
and merely ensures proper inquiry into the allegations. It is contended
that if this Court upholds the maintainability of the Appeal, the Order of
the Industrial Court ought not to be disturbed as it merely warrants
remand of the proceedings before the ICC for conduct of proper inquiry.
91) The situation is accordingly sought to be salvaged by Dr.
Chandrachud by relying on judgment of the Apex Court in Woolcombers
of India Ltd. (supra) by contending that insufficiency of reasons or even
complete absence of reasons is no ground for a writ Court to interfere in
the impugned order if no injustice is done in the case or if the reasons
are apparent from the record. The Apex Court has held in paragraph 9 of
the judgment as under:
9. According to Shri Sanghi, this passage clearly indicates that the
Tribunal has fixed the bare minimum wage. We have already pointed
out that the referring order of the West Bengal Government did not ask
the Tribunal to fix the bare minimum wage. It is also necessary to point
out at this stage that apart from the aforesaid passage in the award
there is no reference at any other place therein that the bare minimum
wage was being granted to the workmen. The financial capacity of an
employer does not enter into the scale in the fixation of the bare
minimum wage. But in fixing the basic wages the Tribunal has
admittedly considered the financial capacity of the Woolcombers. It
would suggest that the Tribunal has really fixed the basic fair wage. So
when the Tribunal says in the aforesaid passage that the basic wages
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fixed by it "cannot be in any way fair wage" it does not really mean to
say that it was fixing the bare minimum wage. It seems to us that the
Tribunal really wanted to emphasise the fact that having regard to the
financial capacity of the Woolcombers it was not awarding more than
the floor level of the fair wage to the workmen. So we do not agree
with Shri Sanghi that the Tribunal has fixed the bare minimum
wage. Now, the absence of reasons in support of the conclusions is
indeed a serious flaw in the award. However, the award cannot be
set aside simply on that score, if there is evidence on the record in
support of the Tribunal's conclusion. Accordingly we have gone
through the entire evidence on record.
(emphasis supplied)
92) In K.L. Tripathi (supra) the Apex Court has held where the
reasons are not expressly spelt out but the same are implicit from fair
reading of the impugned order and where the ultimate conclusion is
found to be reasonable, the conclusion did not warrant interference. The
Apex Court held in paragraph 43 of the judgment thus:
43. It may be mentioned that the facts in that case were different. In
the instant case though reasons have not been expressly stated,
these reasons were implicit namely, the nature of the charges, the
explanation offered and the reply of the appellant to the show
cause notice. These appear from a fair reading of the order impugned
in this case. It, further, appears that there was consideration * of those
facts and the decision was arrived at after consideration of those
reasons. It is manifest, therefore, that absence of any denial by the
appellant, indeed admissions of the factual basis and nature of the
explanation offered by the appellant were considered by the authority
to merit the imposition of the penalty of dismissal. Such a conclusion
could not, in the facts and circumstances of the case, be
considered to be unreasonable or one which no reasonable man
could make.
(emphasis supplied)
93) In Garment Craft (supra) the Apex Court has held that every
error of lower Court need not be corrected in writ proceedings and
interference need not be made where final conclusion is acceptable. The
Apex Court held in paragraphs 15,16 and 17 of the judgment as under:
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15. Having heard the counsel for the parties, we are clearly of the view
that the impugned order is contrary to law and cannot be sustained for
several reasons, but primarily for deviation from the limited jurisdiction
exercised by the High Court Under Article 227 of the Constitution of
India. The High Court exercising supervisory jurisdiction does not
act as a court of first appeal to reappreciate, reweigh the evidence
or facts upon which the determination under challenge is based.
Supervisory jurisdiction is not to correct every error of fact or even
a legal flaw when the final finding is justified or can be supported.
The High Court is not to substitute its own decision on facts and
conclusion, for that of the inferior court or tribunal.1 The jurisdiction
exercised is in the nature of correctional jurisdiction to set right grave
dereliction of duty or flagrant abuse, violation of fundamental
principles of law or justice. The power Under Article 227 is exercised
sparingly in appropriate cases, like when there is no evidence at all to
justify, or the finding is so perverse that no reasonable person can
possibly come to such a conclusion that the court or tribunal has come
to. It is axiomatic that such discretionary relief must be exercised to
ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction Under Article 227, this Court in
Estralla Rubber v. Dass Estate (P) Ltd. MANU/SC/0558/2001 : (2001) 8
SCC 97 has observed:
6. The scope and ambit of exercise of power and jurisdiction by
a High Court Under Article 227 of the Constitution of India is
examined and explained in a number of decisions of this Court.
The exercise of power under this Article involves a duty on the
High Court to keep inferior courts and tribunals within the
bounds of their authority and to see that they do the duty
expected or required of them in a legal manner. The High
Court is not vested with any unlimited prerogative to
correct all kinds of hardship or wrong decisions made
within the limits of the jurisdiction of the subordinate
courts or tribunals. Exercise of this power and interfering with
the orders of the courts or tribunals is restricted to cases of
serious dereliction of duty and flagrant violation of fundamental
principles of law or justice, where if the High Court does not
interfere, a grave injustice remains uncorrected. It is also well
settled that the High Court while acting under this Article
cannot exercise its power as an appellate court or substitute its
own judgment in place of that of the subordinate court to
correct an error, which is not apparent on the face of the record.
The High Court can set aside or ignore the findings of facts of an
inferior court or tribunal, if there is no evidence at all to justify
or the finding is so perverse, that no reasonable person can
possibly come to such a conclusion, which the court or tribunal
has come to. (emphasis supplied)
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[
94) In M.S. Sanjay (supra), the Apex Court has held that
interference by a writ Court for mere infraction of statutory provisions or
norms where such infraction has not resulted in injustice, is not a matter
of course. The Apex Court has held in paragraphs 9 and 10 of the
judgment as under:
9. It is well settled that interference by the Writ Court for mere
infraction of any statutory provision or norms, if such infraction
has not resulted in injustice is not a matter of course. ……
10. It has been rightly observed that legal formulations cannot be
enforced divorced from the realities of the fact situation of the case.
While administering law it is to be tempered with equity and if the
equitable situation demands after setting right the legal formulations
not to take it to the logical end, the High Court would be failing in its
duty if it does not notice equitable consideration and mould the final
order in exercise of its extraordinary jurisdiction. Any other approach
would render the High Court a normal Court of Appeal, which it is not.
It is a settled principle of law that the remedy Under Article 226 of
the Constitution of India is discretionary in nature and in a given
case, even if some action or order challenged in the petition is
found to be illegal and invalid, the High Court while exercising its
extraordinary jurisdiction thereunder can refuse to upset it with a
view to doing substantial justice between the parties.
(emphasis supplied)
95) So far as the issue of failure to record reasons for rejecting
the maintainability objection is concerned, the situation is already
salvaged on account of Petitioners agreeing for deciding the
maintainability issue by this Court and an order of remand on that count
is already obviated. So far as the second plea for retention of the Order of
the Industrial Court after rejecting the maintainability objection by this
Court is concerned, I am not able to accept the same. The Industrial
Court has grossly erred in deciding the merits of the Appeal without
putting Petitioners to the notice that it would also decide merits of the
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Appeal while deciding the maintainability applications. The Industrial
Court has also not inquired whether the complaint contains any
allegation involving sexual harassment or not. So this illegality
committed by the Tribunal cannot be ignored. Also this Court is not
satisfied with the ultimate conclusion recorded by the Industrial Court.
The inquiry conducted for reaching the finding for remand of
proceedings to the ICC is perfunctory. The conclusion is recorded
without hearing the parties and without recording a satisfaction that the
complaint involves an element of sexual harassment. Even the
Respondent No. 2 was not heard on merits of the Appeal. Therefore the
second illegality in the order cannot be ignored even while execrcising
the extraordinary jurisdiction by this Court.
96) I am also not impressed by the submissions made by Mr.
Tamboly, Dr. Chandrachud and Mr. Naphade that no prejudice is caused
to the Petitioners by mere order of remand by the Industrial Court. The
folly committed by the Industrial Court results in a situation where there
is a finding on merit that Respondent No.2 was working in unhealthy,
stressful and uncomfortable environment and that expressions used by
the Petitioners are offensive and unwelcome in nature. The Industrial
Court has clearly ventured into the merits of the decision made by the
ICC without even granting an opportunity of hearing to the parties on
merits. Cause of prejudice to the Petitioners is thus writ large.
ISSUE OF TERRITORIAL JURISDICTION RAISED IN WP 8418 OF 2026
97) It is contended by the Petitioner in Writ Petition No.8418 of
2026 (Mr. Rohit Anand) that the Industrial Court does not have
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jurisdiction to decide the Appeal qua him since he is not employed by the
same employer (Maple Infra) and that he is an employee of an
independent employer (CDPQ). It is also contended that the Petitioner is
located outside India and is working with the CDPQ at Singapore. It is
however an admitted position that CDPQ is a shareholder of Maple Infra.
In my view, in the light of allegations against the Petitioner in the
complaint, whether the Petitioner-Mr. Rohit Anand can be roped in the
Appeal or not is a disputed issue, which has no connection with the issue
of maintainability of appeal under Section 18 of the POSH Act.
Therefore, the issues relating to applicability of POSH Act to Mr. Rohit
Anand and identity of his exact employer need to be kept open to be
decided along with the Complaint. All contentions of parties on these
issues are specifically kept open.
PENDING APPLICATIONS SEEKING DISMISSAL OF APPEAL
98) It appears that Petitioner had filed two sets of applications
before the Industrial Courts viz. questioning maintainability and seeking
dismissal of the Appeal raising the ground of absence of sexual element
in the Complaint. In my view, the latter objection touches upon merits of
the Appeal and cannot be decided in a piecemeal manner. Therefore, the
objection that the complaint does not make out any element of sexual
harassment can be decided while finally deciding the Appeal. Such
course of action would obviate another round of litigation between the
parties over interlocutory orders. So far parties have approached this
Court thrice over the interlocutory decisions. It is therefore necessary
that all issues are decided by the Industrial Court together.
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99) The limited remit of inquiry before the Industrial Court is
whether the ICC is justified in ruling that the complaint of Respondent
No. 2 does not contain an element of sexual harassment. The Industrial
Court is not going to inquire whether the Respondent No. 2 is sexually
harassed or not. If it finds that the complaint has an element of sexual
harassment, it would direct conduct of inquiry by the ICC. If on the other
hand, it arrives at a conclusion that the complaint actually does not
involve an element of sexual harassment, it would proceed to dismiss the
Appeal. Therefore piecemeal determination of Applications filed by the
Petitioners seeking dismissal of the Appeal is not warranted. Decision of
those Applications would actually determine the final outcome of the
Appeal itself. Therefore it is better that all the issues are heard and
decided together by the Industrial Court.
CONCLUSIONS
100) Conspectus of the above discussion is that though the Order
of the Industrial Court does not contain any real ‘decision’ on the issue
of maintainability of the Appeal and though this Court is dissatisfied
with the Order on that count, the Court has itself gone into the issue of
maintainability of the Appeal on account of willingness expressed by the
Petitioners. The issue of maintainability of the Appeal is decided against
the Petitioners and it is held that the communication of the ICC dated 30
October 2023 is a ‘recommendation’ within the meaning of Section 13(2)
of the POSH Act and therefore the Appeal filed under Section 18 of the
Act against that recommendation is maintainable. Accordingly, curtains
are drawn on that issue. However, the approach of the Industrial Court in
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going into merits of the Appeal has not found favour with this Court and
on that count, the Order of the Industrial Court allowing the Appeal and
setting aside communication of ICC dated 30 October 2023 as well as
remanding the proceedings to ICC deserves to be set aside.
ORDER
101) Accordingly, I proceed to pass the following order:
i) It is held that Appeal (IESO) No. 03 of 2024 filed by
Respondent No. 2 is maintainable and accordingly the
Applications as to maintainability of Appeal filed by
the Petitioners are dismissed.
ii) Judgment and order dated 4 May 2026 passed by the
learned Member, Industrial Court, Mumbai, in Appeal
(IESO) No.03 of 2024 is set aside in part.
iii) Appeal (IESO) No.03 of 2024 is remanded on the file of
the Industrial Court for being decided afresh on its
own merits.
iv) All contentions of parties on merits of the Appeal are
kept open. The Industrial Court is requested to decide
the remanded Appeal as expeditiously as possible
preferably within a period of 4 months.
102) With the above directions, Writ Petitions are partly allowed and
disposed of. There shall be no order as to costs.
NEETA
SHAILESH
SAWANT [SANDEEP V. MARNE, J.]
Digitally signed by
NEETA SHAILESH
SAWANT
Date: 2026.08.19
20:51:15 +0530
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