Oral Complaints Cannot Replace Written Complaints Under PoSH Act: Kerala High Court
|The Kerala High Court ruled that oral complaints of sexual harassment cannot replace written complaints to initiate an inquiry under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (PoSH Act).
The case in question involved an inquiry conducted by a Local Level Committee under the PoSH Act against the managing director (MD) of an IT company. The inquiry was initiated based on an anonymous complaint, and the court noted that the individual allegedly victimized by the sexual harassment had not submitted a written complaint, which is a precondition for initiating such an inquiry.
A Bench of Justice PG Ajithkumar clarified that Section 9 of the PoSH Act requires complaints to be in writing, emphasizing that this is a mandatory procedural requirement.
The Court acknowledged the precedent set in the case of Prasad Pannian v. Union of India, where the court had allowed oral complaints in exceptional circumstances, particularly when the complainant was unable to provide a written complaint. However, the Court underscored that oral complaints cannot generally substitute the written format required under the PoSH Act.
The Court also observed that there was no indication that the complainant was unable to provide a written complaint, which further invalidated the inquiry.
The Court held, "Therefore, in the facts and circumstances of this case, the oral complaints made by the 4th respondent (alleged victim) cannot be a substitute for the complaint in writing contemplated by Section 9 of the POSH Act. In that view of the matter, the inquiry conducted by the 2nd respondent becomes illegal,"
Senior Counsel K Jaju Babu appeared for the Petitioner and Advocate Sanal P. Raj appeared for the Respondent.
Additionally, the Court found procedural violations in the conduct of the inquiry, including the failure to examine witnesses in the presence of the petitioner. The committee conducted some interviews over the phone, denying the MD the opportunity to cross-examine witnesses, which the court deemed a violation of natural justice principles.
Ultimately, the Court set aside the inquiry report, ruling that it was ultra vires (beyond the powers) of the PoSH Act.
Cause Title: Abraham Mathai v. State of Kerala & Ors., [2024:KER:91275]
Appearance:
Petitioner: Senior Counsel K Jaju Babu, Advocates P. Fazil, V.S.Sreejith, Jayasree Manoj, Saju Thaliath, Jithin Paul Varghese
Respondent: Advocates Sanal P. Raj, R. Anilkumar, M. Jayakrishnan Vazhoor