POSH Act | Woman May Approach ICC Of Her Own Workplace Against Sexual Harassment By Employee Of Another Organisation : Supreme Court
Kiran Raj
The Supreme Court of India Division Bench of Justice J.K. Maheshwari and Justice Vijay Bishnoi on Wednesday (December 10) held that when a woman is sexually harassed at her workplace by someone from another organisation, she may complain to the Internal Complaints Committee (ICC) of her own establishment rather than to the ICC of that third party. The Court observed that requiring an aggrieved employee to move only the ICC at the other workplace would defeat this purpose. Dismissing an appeal by an Indian Revenue Service officer accused of sexually harassing an Indian Administrative Service officer at her office, the Court affirmed the jurisdiction of the ICC in the aggrieved officer’s department to inquire into the complaint and send its findings to the offender’s employer for action.
The appellant, a civil servant in the Indian Revenue Service, was posted in Delhi when an Indian Administrative Service officer working as Joint Secretary in the Department of Food and Public Distribution alleged that he sexually harassed her at her workplace at Krishi Bhawan on 15 May 2023. An FIR was lodged the next day invoking Sections 354, 354D, 506 and 509 of the Indian Penal Code, with a subsequent chargesheet also referring to Sections 201 and 204 IPC and Section 67 of the Information Technology Act, 2000. The aggrieved officer then filed a complaint under the POSH Act before the Internal Complaints Committee (ICC) constituted in her own department, which issued a notice scheduling an inquiry and later completed its proceedings, submitting a report kept in sealed cover pending the present appeal.
The dispute before the Tribunal, High Court and thereafter the Supreme Court centres on whether the ICC at the aggrieved officer’s department could inquire into a complaint against an employee of another department of the Central Government. The appellant contended that, for civil servants, disciplinary proceedings for sexual harassment must follow Rule 3C of the Central Civil Services (Conduct) Rules and can only be initiated through the ICC in his own department, relying on Sections 11, 13 and 19(h) of the POSH Act. The Union of India argued that the wide definitions of “workplace”, “employer” and “employee” in Sections 2(o), 2(g) and 2(f), read with Sections 9, 11, 13 and 19, permit such inter-departmental inquiries and ensure there is no gap in addressing sexual harassment complaints.
The Court first clarified the meaning of Section 11(1) POSH. It noted that “The grammatical function of the word ‘where’ as appearing in Section 11 of the POSH Act is that of a ‘conditional conjunction’ (similar to ‘in that case’ or ‘if’). It introduces a scenario, contingency or condition and lays down the action which follows.” It further stated that “Use of the phrase ‘where the respondent is an employee’ is essentially a procedural trigger, directing the ICC to apply the service rules which are applicable to the ‘respondent’, it is not a jurisdictional constraint limiting a particular ICC to hear the complaint.” The Court concluded that “the construction of Section 11 is in the nature of a procedural section rather than one that lays down jurisdictional restraints.”
Turning to who can be a respondent and which ICC has jurisdiction, the Court recorded that “The word ‘respondent’ has been defined in Section 2(m) of the POSH Act as ‘a person against whom the aggrieved woman has made a complaint under Section 9’.” It then observed that “The expansive definitions of these words enable the ICC constituted at the aggrieved woman’s workplace to exercise jurisdiction over an employee of a different workplace. None of these definitions provide that the ‘respondent’ must necessarily be an employee of the same workplace where the aggrieved woman works. Any person against whom a complaint is filed by the aggrieved woman before the ICC constituted at her workplace under Section 9, is a ‘respondent’ under the POSH Act and as per the scheme of Section 11(1), if the ‘respondent’ is an ‘employee’, his service rules shall apply and in the absence of service rules, inquiry shall be conducted as prescribed, but the ‘respondent’ need not necessarily be an employee of the same ‘workplace’.”
On the statutory purpose, the Court stated that “The POSH Act does not merely punish acts of sexual harassment, but actively imposes a legal duty on employers to prohibit and prevent harassment, it ensures that the women in each workplace have open access to a mechanism for redressal of complaints of sexual harassment in the form of ICC. It aims to bring about safety and accountability in the workplace in order to enable women to pursue their career without the fear of a hostile environment. It is thus seen that the POSH Act is a social welfare legislation and it must be interpreted as thus.”
Applying this object, the Court recorded that “Keeping in mind the object behind the enactment of the POSH Act, if the aggrieved woman had to approach the ICC constituted at the workplace of the ‘respondent’ for every third-party incident, it would fall short of the aforesaid object.” It further held that “A narrow interpretation of provisions of the POSH Act, in order to hold that only the ICC of the workplace of the ‘respondent’ has jurisdiction to inquire into complaints against him, irrespective of where the workplace of the aggrieved woman is or where the alleged act of sexual harassment took place, would undermine the POSH Act’s remedial social welfare intent since it would create significant practical hurdles for the aggrieved woman.”
The Court added that “Such an interpretation would beget several procedural and psychological barriers for the aggrieved woman” and that “The taboo around sexual harassment at the workplace and the fear of stigma which may be attached to the aggrieved woman as a consequence of a complaint regarding sexual harassment already poses a massive psychological barrier for the aggrieved women which actively dissuades them from pursuing their remedy in law.”
Addressing the argument that only the respondent’s own department can act on ICC findings, the Court stated that “The core issue with this argument is that it fails to differentiate the authority to inquire into the facts and the authority to enforce or act on the findings.” It clarified that “While the ICC constituted at the workplace of the aggrieved woman or the employer may not have the authority to impose a penalty / punishment on the ‘respondent’ as a consequence of the proceedings under the POSH Act, its findings can certainly be acted upon by the employer of the ‘respondent’.”
The Court held: “In the present case, considering the wide definition of the word ‘workplace’ under the POSH Act, particularly as contained in Section 2(o)(v), if we were to accept the contentions of the appellant, the said interpretation would run contrary to the object of the POSH Act and its intent as a social welfare legislation. In the interest of clarity and easy comprehension, the following are our conclusions in terms of the above discussion:”
“(i) The phrase ‘where the respondent is an employee’ as contained in Section 11 of the POSH Act, cannot be interpreted to mean that ICC proceedings against a ‘respondent’ may only be instituted before the ICC constituted at the workplace of the ‘respondent’.”
“(ii) Such a restrictive interpretation of the POSH Act will run contrary to the scheme of the Act, specifically in light of the all-encompassing and wide definition which has been given to the term ‘workplace’ in Section 2(o) of the POSH Act,”
“(iii) Under Section 13 of the POSH Act, the recommendations and report of the ICC are to be sent to the ‘employer’ which shall then take a decision with respect to initiation of disciplinary action. In light of the OM dated 16.07.2015, the ICC has a dual-role – to conduct the preliminary / fact-finding inquiry under the POSH Act and to act as the inquiry authority in the formal disciplinary proceedings under the CCS CCA Rules, 1965 as discussed, since nothing prevents the ICC constituted at the Department of the aggrieved woman from conducting the preliminary / fact-finding inquiry and upon receiving the report of the said ICC, if the employer initiates disciplinary proceedings, the ICC constituted at the Department of the ‘respondent’ shall act as the inquiry authority in the disciplinary proceedings.”
“(iv) In case the ICC constituted at the aggrieved woman’s workplace is conducting a fact-finding inquiry under the POSH Act, the employer of the ‘respondent’, even if it is a different department, must abide its duties under Section 19(f) of the POSH Act to swiftly cooperate and make available information upon a request by the ICC of the aggrieved woman’s workplace.”
“In light of the above conclusions and the answers to the issues as framed, the present appeal is dismissed. The report of the ICC constituted at the aggrieved woman’s workplace shall be transmitted to the Department of the appellant forthwith, which shall take further action as necessary under the POSH Act following the procedure as prescribed in the relevant service rules.”
“All pending applications shall stand disposed of.”
Advocates Representing the Parties:
For the Petitioners: Mr. Vipin Sanghi, Sr. Adv. Mr. Piyush Sharma, AOR Mr. Anuj Kumar Sharma, Adv. Mr. Aditya Dikshit, Adv. Mr. Shivesh Srivastava, Adv. Mr. Piyush Sharma, AOR
For the Respondents: Mr. Aishwarya Bhati, A.S.G. Mrs. Archana Pathak Dave, A.S.G. Mr. Raj Bahadur Yadav, AOR Mr. Abhijeet Singh, Adv. Ms. Shivika Mehra, Adv. Ms. Harshita Choubey, Adv. Mr. Hritik Kashyap, Adv. Mr. Noor Rampal, Adv. Mr. Shreekant Neelappa Terdal, AOR Mr. Abhay Kumar, AOR Mr. Shagun Ruhil, Adv. Mr. Karan Chopra, Adv.
Case Title: Dr. Sohail Malik v. Union of India & Anr.
Neutral Citation: 2025 INSC 1415
Case Number: Civil Appeal No. 404 of 2024
Bench: Justice J.K. Maheshwari, Justice Vijay Bishnoi
