Written_Complaint_is_Mandatory_for_Initiation_of_a_POSH_Inquiry

Written Complaint is Mandatory for Initiation of a POSH Inquiry: Kerala HC

Brief: The Kerala High Court, while entertaining a writ petition, revisited its old judgement where it allowed oral POSH complaints in certain cases. In its latest decision, it emphasized that it was mandatory for complaint to be in writing unless Complainant was not in a position to submit a written complaint.

Case Description

Abraham Mathai v. State of Kerala & Ors.

Kerala High Court

Case type: Writ Petition

Case No.: W.P.(C) No.39915 of 2018

Date of Order: 03.12.2024

Bench: P.G. Ajithkumar, J.

Facts

  1. Petitioner was the Managing Director in the company and his wife was a Director. The latter had hired 4th Respondent as accountant-cum-manager. However, she was soon terminated due to dereliction in her duties.
  2. 4th Respondent challenged termination in Labour Court, and Petitioner filed a suit to stop the former from trespassing into office premise.
  3. During this chaos, the District Collector (3rd Respondent) received an anonymous complaint of sexual harassment and forwarded it to the Local Complaint Committee (“LC”).
  4. An inquiry ensued and resulted in issuance of order against the Petitioner, whereby he was directed to apologize to the Complainant; pay her a sum of 19.80 lakhs as compensation; and establish an Internal Committee (“IC”).
  5. Aggrieved, he challenged the order before the Kerala High Court under Article 226 of Indian Constitution.

Issues

  1. Whether it is mandatory for a complaint to be in writing for an inquiry to ensue under POSH Act, 2013?
  2. Whether Rule 7(6) of POSH Rules, 2013 is unconstitutional?
  3. Whether an aggrieved party can approach High Court under Article 226 despite existence of appeal provision under Section 18 of the POSH Act?

Laws Involved

  1. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (‘POSH Act’) and Rules, 2013 (‘POSH Rules’)
  2. Constitution of India, 1950

Petitioner’s arguments

  1. It is mandatory to submit a written complaint under Section 11 of the POSH Act. There was no submission of any written complaint.
  2. Complaint was filed beyond the period of limitation.
  3. Complaint received by LC did not contain allegations of sexual harassment as defined in Section 2(n) of the Act.
  4. LC (2nd Respondent) conducted the inquiry in violation of Principles of Natural Justice. Further, the inquiry happened in complete disregard of Section 11(3) of POSH Act and Section 11(4) of POSH Rules.
  5. The procedure followed was illegal. Evidence was recorded telephonically, and Petitioner was not granted the chance to cross-examine witnesses.
  6. Section 7(6) of POSH Rules denies assistance of legal practitioner. This is unconstitutional as it violates Articles 14, 19, and 21 of the Indian Constitution. Moreover, it also violates Principles of Natural Justice.
  7. The order directing the Petitioner to apologise and pay an extra-ordinary sum of compensation to the Complainant is not based on reason and, therefore, is against the scheme of the Act.

Respondents’ arguments

  1. 4th Respondent gave her statement, alleging sexual harassment, and this has been proven through witness statements.
  2. Besides being subjected to sexual harassment, 4th Respondent was also blacklisted before other employers.
  3. Petitioner did not avail the remedy of appeal under Section 18 of POSH Act. Therefore, the current petition is untenable.

Court’s Analysis

  1. Regarding mandatory nature of written complaint provision
  2. In the case of Prasad Pannian (Dr.) v. Central University of Kerala [2020 (6) KHC 687], this court held that if the Complainant is not in a position to submit a written complaint, she can give an oral complaint to the Presiding Officer or any Member of the IC. 
  3. In the current case, the 4th Respondent had submitted complaints before the Police, Women’s Commission, Labour Court, etc. Therefore, the Court noted that the 4th Respondent cannot claim to have not been in a position to submit a written complaint for LC inquiry.
  4. As per Section 11 of POSH Act, a written complaint is necessary to initiate an inquiry under the said Act. In this instance, the Court observed that the complaint received by District Collector, and then forwarded to LC, was anonymous.
  5. Further, it is mentioned in the concerned report that the 4th Respondent had denied having sent the complaint. She went as far as alleging that it might have been sent by the Petitioner.
  6. Therefore, the Court concluded that there was no written complaint by the 4th Respondent.
  7. Regarding expiration of limitation period under POSH Act
  8. LC conducted 4th Respondent’s examination on 14.07.2018 and 23.07.2018. During these interviews, she raised couple of allegations against the Petitioner, including the incident where he had allegedly spread lewd remarks against himself in her name.
  9. The concerned complaint was sent in June 2018.
  10. Thus, if the allegations are held to be sexual in nature and the complaint considered within the bounds of Section 9, then such complaint is within the limitation period.
  11. Regarding legality of Inquiry
  12. 4th Respondent clearly mentioned that the Petitioner did not touch her or ask her for sexual favours. Moreover, she had expressed her doubts before the LC that she was not sure whether her allegations had sexual connotation.
  13. The allegations were connected to Petitioner’s unfair and cruel behaviour towards her that led to denial of her salary and her termination.
  14. Although these concerns indicate that Petitioner created hostile work environment for the 4th Respondent, the acts were not connected to sexual harassment.
  15. Regarding irregularities in the proceedings
  16. Examination of witnesses occurred telephonically, and not in the presence of the Petitioner. Moreover, he was not given the opportunity to cross-examine the witnesses.
  17. The procedure followed by LC is in violation of Rule 7(4) of POSH Rules and Principles of Natural Justice. Therefore, it vitiates the concerned report.
  18. Regarding unconstitutionality of Rule 7(6) of POSH Rules
  19. Unconstitutionality of clause barring assistance of legal practitioners in POSH inquiries is academic in nature. Moreover, Petitioner’s counsel did not seriously press for the relief. Hence, the question is left undecided.
  20. Regarding tenability of the Petition
  21. Referring to Commissioner of Income Tax v. Chhabil Dass Agarwal [(2014) 1 SCC 603], the Court highlighted that the non-entertainment of writ petition when there is presence of other remedies is a rule of policy and not the rule of law. High court has discretion to grant relief under Article 226, despite the existence of alternative remedy, in certain circumstances.

Conclusion

  • The Hon’ble Court reiterated that it is mandatory for the complaint to be in writing. Further, since the allegations were not sexual in nature, it was held that the LC did not have the jurisdiction to initiate a POSH inquiry.
  • The LC report was held to be patently illegal and ultra vires of POSH provisions and was therefore quashed.
  • Additionally, the learned bench clarified that Petitioner’s right to approach the court under article 226 is not debarred due to availability of alternative remedy (appeal) when the report appealed from is patently illegal.

Authored by Ayush Bardhan, Trainee Associate, The Legal Swan 

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