ICC Decision That Complaint Lacks 'Sexual Element' Can Be Challenged Under POSH Act: Bombay High Court
A decision of the Internal Complaints Committee (ICC) rejecting a complaint under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) (POSH) Act, 2013 at the threshold with a finding that 'no sexual element' is involved in the plaint, without conducting an enquiry, would still amount to a 'recommendation' under the Act and the said decision can be 'appealed'...
A decision of the Internal Complaints Committee (ICC) rejecting a complaint under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) (POSH) Act, 2013 at the threshold with a finding that 'no sexual element' is involved in the plaint, without conducting an enquiry, would still amount to a 'recommendation' under the Act and the said decision can be 'appealed' before an Industrial Court, held the Bombay High Court on Wednesday (August 19).
Single-judge Justice Sandeep Marne therefore, held that if such a decision of the ICC is not construed as a 'recommendation' it would leave an aggrieved woman 'remediless.'
The judge turned down the argument that the decision of the ICC to reject the complaint at the threshold cannot be construed to be a recommendation as no enquiry as mandated under section 11 of the POSH Act, is conducted.
"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 'recommendation' within the meaning of Section 13(2) or (3) of the POSH Act," the bench held.
To illustrate, the judge explained, that 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, the judge added, "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."
Further, the judge pointed out that the legislative object is not to reward the Internal Committee which violates mandate of Section 11(1) (conducting enquiry) for making its decision challenge free and 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 such decision of the Internal Committee as a recommendation within Section 13(3) of the POSH Act.
"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 of the ICC holding that the complaint does not disclose any sexual element," the bench emphasised.
In the instant case, the bench noted, that the employer has taken cognisance 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 and accordingly, the ICC headed by an external member, took cognisance of the complaint and has rendered its decision on the same.
"Its conclusion is a recommendation as held 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," the judge made it clear.
The High Court's verdict arises from an petition filed by some of the employees of Maple Infra, an infrastructure investment trust, who challenged the decision of an Industrial Court pronounced in May 2026, wherein the Industrial Court held the decision of an ICC on a complaint of one of the female employees, to be appealable under section 18 of the POSH Act.
The employees contended that the female employee's complaint was rightly dismissed or rejected by the ICC at the threshold as there was no 'sexual element' in her plaint against one of the senior employees of the company. However, the Industrial Court while deciding the applications on maintainability of the female employee's appeal challenging the ICC's October 2025 decision communicated through an email, held that the complainant was indeed working in an 'uncomfortable' environment and ordered the ICC to reconsider the complaint afresh.
By the detailed 64-page judgment, Justice Marne held that the ICC's October 2025 decision via email can be held to be a 'recommendation' and thus is appealable before the Industrial Court. The judge, however, held that the Industrial Court while deciding the issue of maintainability of the appeal could have avoided entering into the merits of the appeal. He therefore, ordered the Industrial Court to again consider afresh the complainant woman's appeal against the ICC Decision.
With these observations, the bench disposed of the petitions.
Appearance:
Senior Advocates Sharan Jagtiani and Ashish Kamat along with Advoctes Madhavi Nalluri, Shraddha Achliya, Ankoosh Mehta, Mansi Chheda, Arunima Phadke and Ankita Singhania instructed by Cyril Amarchand Mangaldas appeared for the Petitioner Employees.
Advocates Karl Tamboly, Dr. Abhinav Chandrachud, Aseem Naphade, Vilasini Balasubramanian and Victoria Gonsalves instructed by Jayakar & Partners represented the Complainant.
Assistant Government Pleaders VR Raje and AA Nadkarni represented the State.
Case Title: Anup Vikal vs State of Maharashtra (Writ Petition 7430 of 2026)
Citation: 2026 LiveLaw (Bom) 396