"‘Natural Justice Cannot Be Overlooked’: Kerala High Court Directs POSH Enquiries to Follow Service Rules, Ensures Cross-Examination Rights, Calls for Anonymity Guidelines for Complainants"
Safiya Malik
The High Court of Kerala issued directions to ensure that disciplinary proceedings under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) comply with the applicable service rules and that accused employees are given procedural safeguards. The Division Bench comprising Justice A. Muhamed Mustaque and Justice P. Krishna Kumar stated, “The disciplinary authority should ensure that the Internal Committee proceeded with the enquiry in the manner provided in the Kerala Civil Services (Classification, Control and Appeal) Rules and the petitioner was given an opportunity to discredit the complainant or to adduce evidence before the Committee.”
The Court also directed that “if any irregularity is found, the disciplinary authority is entitled to remit back the matter to the Internal Complaint Committee for curing the defects and for a fresh report, as per Rule 15 (1) & (2) of the Kerala Civil Services (Classification, Control and Appeal) Rules.” The original petition was disposed of with these instructions, leaving further action to the disciplinary authority’s assessment.
The matter arose when a Deputy Director of the District Tourism Office, Malappuram, challenged proceedings initiated against him following a complaint by a female colleague under the POSH Act. An enquiry was conducted by the Internal Complaint Committee constituted under the POSH Act, resulting in a report based on which a memorandum of charges and a show cause notice were issued to the petitioner. The show cause notice tentatively proposed the punishment of lowering him to the junior-most position in the category of Tourist Information Officer.
After submitting a reply raising objections against the enquiry report and subsequent actions, the petitioner approached the Kerala Administrative Tribunal seeking to set aside the enquiry report and all subsequent steps. The Tribunal declined to intervene, holding that the challenge was premature as the disciplinary process was still underway and remedies would be available after final orders were issued.
The petitioner submitted that the enquiry violated Section 11 of the POSH Act and the Kerala Civil Services (Classification, Control and Appeal) Rules. It was argued that the Internal Committee did not permit the petitioner to participate in the enquiry at the stage when the complainant was examined, thereby denying him an opportunity to cross-examine her.
It was contended that Section 11(1) of the POSH Act requires enquiries to be conducted in accordance with applicable service rules and that the second proviso to Section 11(1) mandates an opportunity for both parties to be heard. The petitioner also referred to the decision of the High Court in Sibu L. S. v. Air India Ltd., New Delhi and Others (2016(2) KHC 569) to contend that the principles of natural justice were not followed.
The respondents, represented by Government Pleader Sunilkumar Kuriakose, maintained that the enquiry had adhered to statutory provisions and there was no ground for interference at this stage.
The Court, after hearing both sides, reviewed the relevant statutory framework under the POSH Act. It recorded, “It is evident from a combined reading of Sections 11(1) and 13(3)(i) of the POSH Act that an enquiry to be conducted under the said Act against an employee of the State must be in the form of a disciplinary enquiry to prove misconduct.” It added that “the procedure to be followed in such enquiry must be the procedure prescribed under the Kerala Civil Services (Classification, Control and Appeal) Rules or such other departmental rules applicable to the employee.”
In addressing the petitioner’s grievance regarding the lack of opportunity to cross-examine the complainant, the Court referred to the principles outlined in Sibu L. S. v. Air India Ltd. The Court stated, “The fundamental principles relating to the principles of natural justice is that when a prejudicial statement is made, the same shall not be used against any person without giving him an opportunity to correct and contradict.” It further recorded that, “In sexual harassment complaint, sometimes the complainant may not have courage to depose all that has happened to her at the work place. There may be an atmosphere restraining free expression of victim's grievance before the Committee.”
The Court recorded that the Committee has discretion to decide whether verbal cross-examination by the delinquent is appropriate based on the complainant’s ability to depose fearlessly. It stated, “If the Committee is of the view that the aggrieved is a feeble and cannot withstand any cross examination, the Committee can adopt such other measures to ensure that the witness’ statement is contradicted or corrected by the delinquent in other manner.” The Court also recorded, “If the Committee is of the view that the witness or complainant can freely depose without any fear, certainly, the delinquent can be permitted to have verbal cross examination of such witnesses.”
Addressing the timing of the petitioner’s challenge to the enquiry, the Court stated, “As a general rule, a delinquent facing a disciplinary enquiry should not be permitted to challenge the intermediary proceedings until the enquiry and the consequential decision of the disciplinary authority are concluded.” It added, “If the enquiry proceedings or disciplinary actions are subjected to challenges at every interim stage, there will not be any finality to the process and that will affect the very system of public administration.”
The Court recorded that it found “no jurisdictional error in the impugned order” of the Tribunal.
In disposing of the petition, the Court directed that “the disciplinary authority should ensure that the Internal Committee proceeded with the enquiry in the manner provided in the Kerala Civil Services (Classification, Control and Appeal) Rules and the petitioner was given an opportunity to discredit the complainant or to adduce evidence before the Committee.”
It further directed, “The disciplinary authority can also verify whether the second proviso to Section 11(1) of the Act was also complied with.” The Court permitted the disciplinary authority to proceed further if satisfied with the substantial compliance of statutory requirements, or to remit the matter back to the Internal Complaint Committee to address procedural defects, if necessary.
The Court directed the respondents to complete the process “at the earliest and at any rate within a period of three months from the date of receipt of this judgment.”
During the proceedings, the Court noted the absence of any system for anonymising the identity of complainants in sexual harassment cases at the enquiry stage. It recorded, “When the right to privacy is recognized as one of the important facets of the fundamental rights of a person, a complainant who raises such a grievance is also entitled to ensure that her whereabouts are anonymised from the public domain.”
The Court instructed the State Government to formulate guidelines on this aspect. It recorded, “We direct the first respondent to formulate necessary guidelines within a period of four months.” The Court acknowledged that the Bombay High Court had previously framed similar guidelines in P v. A & Ors. (Suit No. 142 of 2021 dated 24.09.2021) and observed that the State Government could consider adapting them with appropriate modifications.
Advocates Representing the Parties
For the Petitioner : K.R. Ganesh Advocate , Elvin Peter P.J. Senior Advocate, Jeleetta Gregory, Anamika M.J. Adarsh Babu C.S.
For the Respondent : Sunilkumar Kuriakose Government Pleader
Case Title: T v. State of Kerala and Another
Neutral Citation: 2025:KER:22497
Case Number: OP(KAT) No. 80 of 2025
Bench: Justice A. Muhamed Mustaque, Justice P. Krishna Kumar
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