ICC Has Jurisdiction Under POSH Act Over Employee Of Different Workplace Where Aggrieved Woman Isn’t Working: Supreme Court
The Supreme Court said that the use of the phrase “where the respondent is an employee” under Section 11(1) of POSH Act does not mean that the ICC constituted at the workplace of the aggrieved woman cannot exercise jurisdiction.
Supreme Court, POSH Act
The Supreme Court held that the Internal Complaints Committee (ICC) constituted at the aggrieved woman’s workplace has jurisdiction over an employee of a different workplace under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [POSH Act].
The Court held thus in a Civil Appeal preferred against the Judgment of the Delhi High Court, which confirmed the Judgment of the Central Administrative Tribunal (CAT).
The two-Judge Bench comprising Justice J.K. Maheshwari and Justice Vijay Bishnoi observed, “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’.”
The Bench said that the use of the phrase “where the respondent is an employee” under Section 11(1) of POSH Act does not mean that the ICC constituted at the workplace of the aggrieved woman cannot exercise jurisdiction.
Senior Advocate Vipin Sanghi appeared on behalf of the Appellant, while Assistant Solicitor General (ASG) Aishwarya Bhati appeared on behalf of the Respondents.
Facts of the Case
The Appellant was a 2010 batch officer of the Indian Revenue Service (IRS) who was posted as OSD, Investigation, Central Board of Direct Taxes (CBDT), Delhi. A 2004 batch Indian Administrative Service (IAS) officer i.e., the aggrieved woman who was, at the relevant time, posted as Joint Secretary, Department of Food and Public Distribution, alleged that the Appellant sexually harassed her at her workplace, which was at Krishi Bhawan, New Delhi. An FIR was registered by the aggrieved woman against the Appellant under Sections 354, 354D, 506, and 509 of the Indian Penal Code, 1860 (IPC). Subsequently, a complaint was presented before the ICC constituted under Section 9 of the POSH Act at the aggrieved woman’s department/workplace.
Thereafter, the ICC issued a meeting notice/order to the Appellant, scheduling a hearing for the complaint, for him to appear along with a response. It was at this stage, the Appellant filed an Application before CAT, seeking direction to set aside the order/notice and all consequential proceedings arising therefrom. However, the CAT dismissed the same, which was upheld by the High Court. Being aggrieved, the Appellant approached the Apex Court. The jurisdictional challenge by the Appellant was related to whether the ICC constituted at a certain Department of the Government of India can entertain a complaint under POSH Act against the Appellant who was working at a different Department of the Government of India at the relevant time.
Court’s Observations
The Supreme Court in view of the above facts, noted, “… the inescapable conclusion, upon plain reading of the text of Section 11(1) of the POSH Act is that the argument advanced by the Appellant is liable to be rejected. As discussed above, in case the ‘respondent’ is an ‘employee’, the ICC is obligated to apply the service rules applicable to him, but the use of the phrase ‘where the respondent is an employee’ does not mean that the ICC constituted at the workplace of the aggrieved woman cannot exercise jurisdiction. As such, the construction of Section 11 is in the nature of a procedural section rather than one that lays down jurisdictional restraints.”
The Court further noted that the requirement of Section 11(1) is that in case the ‘respondent’ is an ‘employee’, the inquiry by the ICC must be in accordance with the service rules applicable to him, if service rules do not exist, it shall be conducted as may be prescribed, or if he is a domestic worker, the Local Committee must forward the complaint to the police.
“The definitions of the word ‘employee’ and ‘workplace’ as quoted above in this judgement at their respective places are completely neutral, in the sense that they do not suggest that the ‘respondent’ must necessarily be an employee of the workplace where the aggrieved woman works”, it added.
The Court explained 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” and it does not require the ‘respondent’ to be someone working at the same workplace as the aggrieved woman, rather the exact words used are ‘a person’ which can be any person against whom complaint has been made.
“The word ‘employee’ as defined in Section 2(f) of the POSH Act – further provides that it means a ‘person employed at a workplace…’. The word ‘workplace’ itself which is defined in Section 2(o) of the POSH Act, has been given a wide meaning, particularly in clause (v) of Section 2(o), which posits that the word ‘workplace’ also includes ‘any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey’.”, it said.
The Court emphasised that Section 19(h) makes it a duty of the employer to facilitate the initiation of action under the IPC if the aggrieved woman so desires, it is not in derogation or exclusion of the power to initiate proceedings under the POSH Act and even where the ‘respondent’ is not an employee anywhere, criminal proceedings may be initiated and such initiation of criminal proceedings must be facilitated by the employer.
“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”, it observed.
The Court remarked 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.
“In such view of the matter also, the intent of the legislature behind giving such a wide meaning to the word ‘workplace’ to go beyond the bounds of the traditional meaning implying location of the office, cannot be brushed aside by narrow construction of other provisions of the POSH Act. It is for the aforementioned reasons that we are constrained to reject the argument of the Appellant and answer Issues 1 and 2 in the above terms”, it clarified.
The Court was of the view that even though the ICC is constituted under a different department, it has a statutory backing in its constitution and functioning and if the recommendations of the ICC are brushed aside and not acted on by the employer, a right to appeal has been provided under Section 18 of the POSH Act.
“The fact that ultimately disciplinary action against the ‘respondent’ has to be taken by his employer and his department cannot be an impediment for the ICC constituted at the workplace of the aggrieved woman to take up the fact-finding inquiry under Section 11 of the POSH Act when read with the OM dated 16.07.2015”, it also said.
Conclusion
The Court, therefore, held that the ICC proceedings instituted in the aggrieved woman’s department can be considered the first-stage of inquiry which carries out a preliminary / fact-finding inquiry, after which the report of the ICC may be sent to the employer / department of the ‘respondent’.
“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’ … 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, particularly in light of Section 2(o)(v) which expands the scope of ‘workplace’ to include any place visited by the employee ‘arising out of or during the course of employment’.”, it clarified.
Moreover, the Court observed that 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 16.07.2025, 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”, it added.
The Court concluded that 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.
Accordingly, the Apex Court dismissed the Appeal and directed that 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.
Cause Title- Dr. Sohail Malik v. Union of India & Anr. (Neutral Citation: 2025 INSC 1415)
Appearance:
Appellant: Senior Advocate Vipin Sanghi, AOR Piyush Sharma, Advocates Anuj Kumar Sharma, Aditya Dikshit, and Shivesh Srivastava.
Respondents: ASGs Aishwarya Bhati, Archana Pathak Dave, AORs Raj Bahadur Yadav, Shreekant Neelappa Terdal, Abhay Kumar, Advocates Ruchi Kohli, Priyanka Das, Preeti Rani, B K Satija, Shubhranshu Padhi, Noor Rampal, Shagun Ruhil, Shreenivash, and Rakesh Kumar.
