ICC Cannot Proceed With A Complaint Under POSH Act If It Does Not Contain Allegation Of Sexual Harassment: Kerala High Court

The Kerala High Court held that an Internal Complaints Committee cannot proceed with a compliant if the allegations made in it does not constitute 'sexual harassment' under Section 2(n) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). Justice D. K. Singh said that in such cases, the jurisdictional fact for taking cognizance does not exist.“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.”After referring to the definition of sexual harassment under POSH Act the court said that in the present matter, the complaint did 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'. It said, "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 (complainant) and other employees who were present there at the cabin of the petitioner. The complaint is about the language used by the petitioner and the alleged insult caused to the 3rd respondent". As per the case, a complaint was given by the office bearer of the party against the Manager of a Kerala State Financial Enterprises Ltd. (KSFE) Branch to the Presiding Officer of Internal Complaints Committee (ICC) in KSFE Regional Office. The complainant was not an employee of the branch. She alleged that when she along with other office bearers of the party entered the cabin of the Manager to talk about issuance of memo to 8 female employees in the Branch, he recorded her video in his mobile phone and shouted at her to get out of his cabin in an obscene language. On this complaint, a notice was issued to the Branch Manager by the ICC. The Manager challenged this notice before the High Court.As per him, he issued a memo to eight female employees to furnish their explanations for not reaching the chitty canvasing target. When he received no explanation, he reported the matter to the higher authorities. On the next day, some members of a political union who were not even employees in the branch entered his cabin forcefully, misbehaved with him and tried to snatch his mobile phone. On the next day, the petitioner lodged a complaint before the police saying that they created a hostile atmosphere inside the office and threatened to inflict physical harm on him if any action were taken against the employees. Subsequent to this, the complaint was given to ICC. He said the incidents mentioned in the complaint were not true and there was no allegation of sexual harassment in the complaint. He argued therefore that ICC took cognizance of the matter without jurisdiction.KSFE however rejected this argument saying that the petition was premature as the committee is in its preliminary stage and it has not decided whether the complaint requires further proceedings or not.The court further noted that the complainant was not employed at the relevant KSFE branch. She had claimed to be an office bearer of the party and had visited the petitioner's cabin along with other office bearers. The petitioner did not give her permission, and she allegedly made a forceful entry into the petitioner's cabin, the court noted.Accordingly, the petition was allowed and the ICC's notice was set aside. Counsel for the Petitioners: Advocates K. M. Sathyanatha Menon, Ayisha, Anjali, Nirmal Das P.Counsel for the Respondents: Advocates Gopikrishnan Nambiar A. M., Salil Narayanan K. A., K. S. Arun Kumar, K. John Mathai, Jonson Manavalan, Kuryan Thomas, Paulose C. Abraham, Raja Kannan, Amrutha K. P., K. BincymolCase No: WP(C) 24867 of 2024Case Title: Hareesh M. S. v The Kerala State Financial Enterprises Ltd. and OthersCitation: 2025 LiveLaw (Ker) 113Click Here To Read/Download Order

ICC Cannot Proceed With A Complaint Under POSH Act If It Does Not Contain Allegation Of Sexual Harassment: Kerala High Court

Manju Elsa Isac

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