Sanchayita Lahkar

The High Court of Kerala Division Bench of Justice Raja Vijayaraghavan V and Justice K.V. Jayakumar dismissed a writ appeal brought against the judgment of a learned Single Judge that had set aside the report of the Local Committee constituted under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Court affirmed that the Local Committee’s report dated 22 August 2018 and the consequential communication dated 19 September 2018 issued by the District Collector were without legal foundation.

The dispute traces its origins to the corporate operations of Amstor Information Technology (India) Pvt. Ltd., a company functioning at Technopark, Thiruvananthapuram. The Managing Director of the company was the first respondent, while his wife also held a directorial role. The appellant, who later became the writ petitioner, was engaged as an Accountant-cum-Manager on 2 June 1997 by the wife of the Managing Director.

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On 7 November 2017, the appellant’s services were terminated. Following termination, she approached the Labour Court challenging the order of dismissal. Shortly thereafter, the first respondent instituted proceedings before the Munsiff’s Court, Thiruvananthapuram, seeking to restrain her from trespassing into the company office premises.

Meanwhile, a complaint was forwarded to the District Collector alleging misconduct against the first respondent. The Collector transmitted the complaint to the Local Committee constituted under the PoSH Act. The Committee initiated an inquiry and eventually submitted a report dated 22 August 2018 (marked Ext. P5 in subsequent proceedings).

The report made three substantive recommendations. First, it required the first respondent to issue a written apology to the complainant for professional and personal damages caused. Second, it directed him to pay a lump sum compensation of ₹19.80 lakhs within 90 days as redress under the PoSH Act. Third, it mandated the immediate constitution of an Internal Committee within the company, in conformity with statutory requirements, within 30 days of receipt of the order, failing which the employer could be subject to penalties under the Act.

Acting on this report, the District Collector issued a letter dated 19 September 2018 (Ext. P6), calling upon the first respondent to comply with the recommendations.

The first respondent, contesting both the report and the Collector’s directive, filed Writ Petition (C) No. 39915 of 2018 before the High Court of Kerala. Reliefs sought included: a declaration that Rule 7(6) of the PoSH Rules was unconstitutional; quashing of Rule 7(6); and quashing of Ext. P5 report and Ext. P6 communication.

The Single Judge, after examining the matter, ruled in favour of the writ petitioner. Four key findings were recorded. Firstly, the appellant had not submitted a written complaint; this omission, admitted during the inquiry, contravened Section 9 of the PoSH Act and Rule 6 of the Rules. Secondly, the allegations did not disclose acts constituting sexual harassment as defined in Section 2(n) of the Act. Thirdly, the petitioner had been denied the opportunity to cross-examine witnesses, violating Rule 7(4) and the principles of natural justice. Fourthly, the Court’s jurisdiction under Article 226 was not barred by the existence of alternate remedies when statutory violations and breaches of natural justice were evident.

The appellant challenged this judgment before the Division Bench by filing Writ Appeal No. 1622 of 2025. Her counsel argued that the Local Committee was competent to act on oral testimony and that sexually coloured remarks amounted to harassment under the PoSH framework. He contended that approaching the Labour Court did not deprive the appellant of the remedies available under the PoSH Act and that the writ petition should have been dismissed in view of alternate remedies.

Opposing the appeal, the respondent’s senior counsel emphasized that the Local Committee acted illegally by relying on a complaint that the appellant herself disowned. It was submitted that oral statements could not substitute the written complaint mandated by law, and that the proceedings were conducted in gross violation of natural justice by denying the respondent cross-examination. It was further pointed out that the appellant had already pursued remedies before the police, the Women’s Commission, and the Labour Court, indicating her capability to file a proper written complaint if she intended.

The Division Bench examined these rival submissions, reviewed statutory provisions including Sections 2(n), 3, 9, and 11 of the PoSH Act, and Rules 6 and 7 of the PoSH Rules, and considered relevant precedents. It assessed the factual record, including the appellant’s deposition, the manner of inquiry, the Labour Court’s award granting compensation for illegal termination, and the subsequent Single Judge’s modification of that award.

The Division Bench set out its judicial reasoning with direct reference to the statutory text and prior precedent.

The Court recorded: “The PoSH Act was enacted to provide protection against sexual harassment of women at the workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto, as can be seen from the preamble of the said act.”

On the statutory definition, it quoted: “‘Sexual harassment’ includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely: (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.”

The Court cited its earlier Division Bench precedent: “In Prasad Pannian v. Central University of Kerala, after evaluating the provisions of the Act, it was observed that sub-clauses (i) to (v) are only instances of unwelcome acts or behaviour and there may be other instances as well. However, when an allegation of sexual harassment is made, though not coming within the parameters as specified, the act should have something to do with a sexual advance either directly or by implication.”

Addressing Section 3, the Bench stated: “No woman shall be subjected to sexual harassment at any workplace. The following circumstances, among other circumstances, if it occurs, or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment: implied or explicit promise of preferential treatment in her employment; implied or explicit threat of detrimental treatment in her employment; implied or explicit threat about her present or future employment status; interference with her work or creating an intimidating or offensive or hostile work environment for her; humiliating treatment likely to affect her health or safety.”

On complaints, the Bench emphasized: “Section 9 of the Act speaks about complaints. Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee or the Local Committee… The oral statement made before the Committee, after distancing herself from the original anonymous complaint, cannot be accepted as a substitute for the written complaint contemplated under Section 9.”

The Division Bench further recorded: “In the case at hand, it is evident from the report of the Committee that the appellant had clearly stated she had not submitted any written complaint. However, the report shows that a complaint received by the District Collector was forwarded. Before the Committee, the appellant disowned the complaint and suggested that the 1st respondent might have been the person who submitted it.”

Regarding the scope of allegations, the Court noted: “She said the respondent had not touched her or asked her for sexual favours, and was not sure whether there was any sexual harassment in the case.”

It concluded that: “Her allegation was that the 1st respondent created a hostile work environment, behaved in an unfair and cruel manner, and ultimately denied her salary and terminated her service but without any unwelcome acts or behaviour which may tantamount to sexual harassment as defined under Section 2(n) of the Act. These acts, evidently, are connected to a labour dispute rather than constituting sexual harassment.”

On procedure, the Court observed: “The statements of these witnesses were recorded over the telephone and not in the presence of the 1st respondent. He was not granted an opportunity to cross-examine the witnesses or to challenge their statements.”

Citing Maneka Gandhi v. Union of India, Mohinder Singh Gill v. Chief Election Commissioner, and State of Orissa v. Binapani Dei, the Court stated: “Duty to act judicially would therefore arise from the very nature of the function intended to be performed. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity.”

On writ jurisdiction, the Bench stated: “The Hon’ble Supreme Court has held that the existence of an alternative remedy does not operate as an absolute bar in at least three well-recognized exceptions, namely: where the writ petition is filed for the enforcement of Fundamental Rights; where there is a violation of the principles of natural justice; and where the order or proceedings impugned are wholly without jurisdiction or where the vires of a statute is under challenge. In the present case, the Local Committee has acted in contravention of the statutory provisions and in gross violation of the principles of natural justice.”

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The Division Bench concluded its judgment by affirming the reasoning and directions of the Single Judge.

It held that the writ court was justified in invoking Article 226 jurisdiction. The final pronouncement states: “In view of the above, the learned Single Judge was fully justified in exercising writ jurisdiction under Article 226 and in setting aside the report dated 22.08.2018 issued by the LC, as well as the consequential communication dated 19.09.2018 issued by the District Collector.”

Accordingly, the Bench ordered: “This Writ Appeal is accordingly dismissed.”

Advocates Representing the Parties

For the Petitioners: Sri. R. Anilkumar, Advocate

For the Respondents: Sri. P. Fazil, Advocate; Shri. M. Jayakrishnan, Central Government Counsel; Sri. Saju Thaliath, Advocate; Smt. Jayasree Manoj, Advocate; Sri. Jithin Paul Varghese, Advocate; Smt. C. Prabitha, Advocate; Shri. Fadil Fazil, Advocate; Smt. Aswathy Jayachandran, Advocate; Smt. Akshaya Thomas, Advocate; Sri. K. Jaju Babu (Senior Advocate)

Case Title: XXX v Abraham Mathai and Ors.

Neutral Citation: 2025:KER:57427

Case Number: W.A. No. 1622 of 2025

Bench: Justice Raja Vijayaraghavan V; Justice K.V. Jayakumar