Failure To Supply Complaint To Accused, Denial Of Cross-Examination Vitiates POSH Inquiry: Kerala High Court

Justice M.B. Snehalatha was considering a writ petition challenging the report of the Internal Complaints Committee (ICC) that made adverse findings against the petitioners, which in turn, led to the passing of a termination order against them.

“Serving a copy of the complaint and other relevant documents to the delinquent is mandatory under Rule 7 of the POSH Rules and the failure to do so is in violation of the principles of natural justice,” the Court remarked.

The petitioners contended that the ICC's inquiry was illegal, arbitrary and in violation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) and the Rules thereunder.

It was pointed that the copies of the complaint and the ICC report were not served on them as required under law and they received the copy of the complaint through an RTI application after the ICC passed the order.

Further, the petitioner argued that they were summoned for enquiry without being given the complaint copy and were denied the opportunity to cross-examine the complainant and witnesses.

The respondents opposed the plea and contended the petitioners ought to have exercised their statutory right to appeal instead of invoking the writ jurisdiction of the High Court.

After hearing the parties, the Court examined Section 11(1) of the POSH Act as well as Rules 7 of the POSH Rules and remarked:

“Rule 7(2) of POSH Rules specifically states that, on receipt of the complaint, the Complaints Committee shall send one of the copies to the respondent and the inquiry should be done in accordance with the principles of natural justice… As per Rule 7(3), delinquent is required to be given an opportunity to file a reply to the complaint, along with the list of documents and details of witnesses within a period of ten working days. Rule 7(4) of the POSH Rules provides that Internal Committee shall conduct the enquiry in accordance with the principles of natural justice by providing reasonable opportunity to the delinquent to be heard and to present their case.”

The Court also referred to Aureliano Fernandes v. State of Goa wherein the Apex Court stressed upon the importance of informing the accused of the case and evidence against him as well as that of being given a reasonable opportunity of hearing.

In the counter affidavit of one of the respondents, it was stated that accused was shown the complaint during the hearing. After perusing the same, the Court was of the opinion that there is merit in the petitioners' contention that they were not served with a copy of the complaint.

The Court also remarked that the records show that they were not given the opportunity for cross-examination, violating principles of natural justice:

“The records would also reveal that no opportunity was given to the petitioners to cross-examine the complainant and witnesses. Thus, prima facie, there is merit in the contention put forward by the petitioners that there is violation of the principles of natural justice. It is evident that enquiry was conducted by ICC by violating the principles of natural justice and therefore,…report is vitiated and liable to be set aside, as the enquiry was conducted without following the POSH Act and Rules and principles of natural justice.”

Thus, the Court allowed the plea and set aside the ICC report. It directed the ICC to conduct an enquiry afresh within 2 months in accordance with law.

The Court further clarified that it has not considered the merits of the complaint or the defence canvassed by the petitioenrs.

Case No: WP(C) No. 31952 of 2025

Case Title: XXX and Anr. v. Kerala Society Security Mission and Ors.

Citation: 2026 LiveLaw (Ker) 217

Counsel for the petitioners: Shibi K.P., C.K. Sunil, Vidya K.G.

Counsel for the respondent: K.R. Ganesh

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