POSH Act Cannot Be Invoked Without Allegations Of Sexual Harassment

Introduction

Sexual harassment at the work place continues to be a significant issue that compromises the dignity, safety and equality of employees, particularly women. It violates the fundamental human rights and negatively impacts individuals well – being, professional development and productivity.

In response to such pervasive issue, The Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 also known as the POSH Act was enacted to ensure a safe and dignified workplace environment for women by addressing incidents of sexual harassment. The law establishes redressal mechanisms by setting up of an Internal Committee (IC) to inquire into complaints pertaining to sexual harassment at workplaces and outlining clear procedures related thereto.

However, the Act is specific in its applicability-it can only be invoked in cases where an allegation of ‘sexual harassment' as defined under Section 2(n) of the POSH Act is made.

In a recent case, X vs. The Kerala State Financial Enterprises Limited, the Hon'ble High Court of Kerala, reinforced this principle, holding that a complaint that does not allege sexual harassment cannot be proceeded with under the POSH Act. This case underscores the relevance of ensuring that only complaints that fall within the ambit of the POSH Act are entertained by the Internal Committee, preventing its misuse for other workplace grievances.

Facts of the case:

The petitioner, who was accused in the case, was working as the Manager of the Kerala State Financial Enterprises Limited. In the course of his official duties, he issued a memo dated May 31, 2024 to eight junior female employees, questioning their failure to achieve a specified target and requesting explanations. Since none of the employees provided a satisfactory response, the petitioner escalated the matter to higher authorities on June 19, 2024

The following day i.e., June 20, 2024, an incident occurred wherein a female (hereinafter referred to as respondent), who was not even working under the petitioner's branch entered his cabin along with several political union members that too without prior appointment or permission. It was alleged by the petitioner that they forcibly entered his office, misbehaved with him and even attempted to snatch his mobile phone.

Threatened by the incident, the petitioner filed a police complaint on June 21, 2024, asserting that the respondent and others had created a hostile atmosphere inside the office of the petitioner and even threatened him to inflict physical harm if any action were taken against any of the employees. The statement of the petitioner was recorded by the Police on June 27, 2024.

Subsequently, the respondent filed a complaint before the Internal Committee (IC) of the organization alleging that when she entered the petitioner's cabin, he tried to record her video on his mobile phone and used obscene language while asking to leave.

She further claimed that “He behaved in such a way without considering me as a woman and by insulting me in front of others.” On the basis of the complaint, a notice was issued by the Presiding Officer of the IC to the petitioner on July 08, 2024.

Aggrieved by the same, the petitioner approached the Hon'ble High Court of Kerala at Ernakulam impugning the proceedings initiated by the IC and challenging the notice so issued by the Presiding Officer of the IC through the writ petition¹.

Legal Issue Involved

The primary question before the court was:

Whether the respondent's complaint disclosed allegations of sexual harassment as defined under Section 2(n) of the POSH Act?

Contention of the Petitioner

1. That the respondent was not an employee in the branch of the petitioner .
2. That she forcibly entered the cabin of the petitioner, and she was the person who misbehaved, tried to snatch the mobile phone and disrupted the official work performed by the petitioner
3. That the complaint so filed before the IC did not contain any allegation of sexual harassment.

Therefore, in view of the aforementioned contentions, it was submitted that the IC had no jurisdiction to take cognizance of the said complaint.

Contention of the Respondent

1. The learned counsel appearing on behalf of the organization submits that the petitioner's apprehension that the enquiry will proceed is premature. The proceedings before the IC are only at a preliminary stage, and the committee has not decided whether the complaint requires further proceedings or not.
2. It was further contended that the IC is only empowered to recommend if it finds the behavior of the employee amounts to sexual harassment at workplace under the POSH Act. If ICC finds that the complaint has no substance, it cannot impose punishment for a false complaint. However the power to decide whether allegation of sexual harassment is made or not is solely the domain of ICC, and this court may not interfere with the proceedings of ICC at this stage.

Both the learned counsels appearing for or on behalf of the respondent and the IC supported the aforementioned submissions.

Court's Observations and Ruling

The Hon'ble Kerala High Court examined the definition of sexual harassment under Section 2(n) of the POSH Act which includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:

1. Physical contact and advances; or
2. A demand or request for sexual favours;or
3. Making sexually colored remarks; or
4. Showing pornography; or
5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

The court observed that the allegations made by the respondent did not satisfy any of the elements outlined in section 2(n). The complaint so filed did not mention any inappropriate physical contact, sexual advances, sexually colored remarks, or any behavior of a sexual nature.

“Even if the complaint is believed to be correct, the only allegation is that the petitioner tried to record the conversation and he hurled abuses on the respondent and other employees who were present there at the cabin of the petitioner. The complaint is only about the language used by the petitioner and the alleged insult caused to the respondent”, the court remarked.

Thus, the court ruled that the since the complaint did not contain any allegations that fit within the definition of sexual harassment under the POSH Act, the IC did not have the jurisdiction to entertain or proceed with such complaint.

Accordingly, the impugned notice issued by the IC was held to be without legal basis vide order dated February 10, 2025.

Conclusion

The aforementioned judgment reinforces that the POSH Act is specifically enacted to address complaints relating to sexual harassment at workplaces. It cannot be used to resolve general workplace disputes or misconduct unrelated to sexual harassment.

In addition, this ruling also highlights the responsibility of Internal Committees to ensure that they only entertain complaints that prima facie disclose allegations of sexual harassment. If a complaint does not meet this threshold, the IC must refrain from initiating an inquiry

Shreya Bhushan , Intern at S.S. Rana & Co. has assisted in the research of this article.

Footnote

1. WP (C)No. 24867 of 2024

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