ICC's Threshold Rejection Of Sexual Harassment Complaint Can Be Treated As Recommendation For Appeal U/S 18 POSH Act: Bombay High Court

The Bench was hearing a batch of writ petitions challenging an Industrial Court order that had bypassed maintainability objections to set aside an ICC communication and remand the matter for inquiry. It held that reading Section 13 strictly in isolation to deny appellate remedies where an ICC fails to hold an inquiry under Section 11 would defeat the remedial, social welfare intent of the POSH Act.

A Bench of Justice Sandeep V. Marne observed, “…when the Internal Committee violates the mandate under Section 11 of the POSH Act by not conducting inquiry into the complaint of sexual harassment and rules that the complaint does not have any sexual element, the ruling to that effect made by the ICC without holding inquiry will have to be necessarily treated as a ‘recommendation’ under Section 13(2) with a view to provide a remedy to the Complainant under Section 18 of the POSH Act. Otherwise, appellate scrutiny of ICC's decision can be easily avoided by rejecting every complaint at the threshold”.

“On combined reading of Sections 11 and 13 of the POSH Act, every decision taken by the Internal Committee on a complaint of sexual harassment would form a ‘recommendation’ within the meaning of Section 13(2) or 13(3)…The word ‘recommend’ needs to be construed in the context of provisions of the POSH Act…”, it further noted.

Senior Advocate Sharan Jagtiani appeared for the petitioner and Advocate Karl Tamboly appeared for the respondent.

The controversy arose after an employee tendered her resignation and subsequently emailed a complaint to the ICC. The external member-led ICC communicated via email that the allegations lacked a sexual element and fell outside its jurisdiction. The employee challenged this communication before the Industrial Court under Section 18(1).

While the employer and named individuals raised preliminary objections questioning the maintainability of the appeal on the ground that a threshold refusal without inquiry is not a "recommendation," the Industrial Court dismissed the maintainability applications and simultaneously allowed the main appeal on merits. The Petitioners approached the High Court challenging this dual exercise.

The Court laid down the ratio decidendi that any decision or ruling by an ICC determining that a complaint does not disclose a sexual element, even if arrived at without conducting a full-fledged inquiry, assumes the characteristic of a "recommendation" under Section 13(2), as the employer acts upon it to close the proceedings. Consequently, such orders are fully appealable under Section 18.

“…If the Internal Committee does not conduct inquiry in the manner prescribed under Section 11, the same may vitiate its decision/recommendation. However, mere non-conduct of inquiry in respect of complaint of sexual harassment by the Internal Committee would not save its decision from the ambit of the expression ‘recommendation’ under Section 13 of the POSH Act. Even if Internal Committee does not conduct an inquiry but still makes a decision on a complaint of sexual harassment, such decision would be a ‘recommendation’ within the meaning of Section 13(2) or (3) of the POSH Act. To illustrate, upon receipt of a complaint of sexual harassment, the ICC writes to the employer to terminate the services of the Respondent-employee without holding inquiry, such course of action of the committee would assume characteristic of a ‘recommendation’ and the mere vice of non-holding of inquiry would not save such action from the ambit of the expression ‘recommendation’ used under Section 13(3) of the POSH Act…”, it said.

“…On the same analogy, if the Internal Committee, upon receipt of complaint of sexual harassment, rules that the complaint does not constitute sexual harassment of the complainant, such ruling by the Internal Committee would also assume characteristic of a recommendation made under Section 13(2) of the POSH Act. This is because the employer acts on such decision of the Internal Committee and does not take any further action in the manner as per Section 13(2) of the POSH Act. Therefore, a ruling by the Internal Committee that the complaint does not constitute sexual harassment, which is arrived at without holding any inquiry, would still be a ‘recommendation’ within the meaning of Section 13(2) of the POSH Act”, the Bench further noted.

However, addressing the procedural lapse committed by the Industrial Court, the Court held that the tribunal committed an egregious error by deciding the main appeal on merits and remanding the matter to the ICC without affording the parties an opportunity to argue whether the complaint prima facie disclosed a sexual element. Consequently, the High Court set aside the Industrial Court’s order to the extent it decided the merits, dismissed the maintainability objections, and remanded the appeal to the Industrial Court to decide afresh on merits.

Cause Title: Anup Vikal v. State of Maharashtra and Ors. WP-7430 OF 2026

Appearances:

Petitioner: Senior Advocate Sharan Jagtiani, Advocates Shraddha Achliya, Ankoosh Mehta, Mansi Chheda, and Arunima Phadke i/b Cyril Amarchand Mangaldas.

Respondent: Advocate Karl Tamboly, Advocates Vilasini Balasubramanian and Victoria Gonsalves i/b Jayakar & Partners.

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