Bombay High Court Holds ICC’s Threshold Rejection of POSH Complaint Appealable; Sets Aside Industrial Court’s Merits Decision and Remands Appeal for Fresh Hearing
Bombay High Court Partly Allows Employees’ Petitions in POSH Dispute; Upholds Appeal Maintainability but Sets Aside Industrial Court’s Merits Decision and Remands Case
Facts
The Bombay High Court dealt with three connected writ petitions filed by Anup Vikal, Chandrani Sen and Rohit Anand against the State of Maharashtra and others. The central question was whether an appeal under Section 18 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) lies against an ICC communication stating that a complaint does not contain an element of sexual harassment.
Respondent No. 2 joined Maple Infra InvIT Investment Manager Private Limited on 1 August 2023 as General Counsel (Vice President-Legal). According to the petitioners, she resigned on 12 October 2023. Settlement negotiations concerning her exit subsequently failed.
On 28 October 2023, Respondent No. 2 emailed a complaint to Maple Infra’s Internal Complaints Committee (“ICC”), describing it as a complaint under the POSH Act.
Since she objected to Chandrani Sen being a member of the ICC, the complaint was referred to an external member. On 30 October 2023, the external member communicated that the ICC had deliberated upon the allegations and concluded that they did not contain a sexual element and therefore fell outside the ICC’s jurisdiction.
Respondent No. 2 challenged this communication by filing Appeal (IESO) No. 3 of 2024 under Section 18(1) of the POSH Act before the Industrial Court, Mumbai.
The petitioners questioned the maintainability of that appeal.
The Industrial Court, by judgment dated 4 May 2026, rejected their maintainability objections, set aside the ICC communication and remanded the complaint to the ICC for a fresh inquiry under the POSH Act.
The petitioners consequently approached the Bombay High Court.
Issues
The principal issues were:
- Whether an ICC communication refusing to conduct an inquiry because the complaint allegedly contains no element of sexual harassment amounts to a “recommendation” under Section 13(2) of the POSH Act.
- Whether such a threshold rejection is appealable under Section 18 of the POSH Act even though no full-fledged inquiry under Section 11 has been conducted.
- Whether only recommendations issued after completion of a formal inquiry can be appealed under Section 18.
- Whether the Industrial Court exceeded its jurisdiction by deciding the merits of the appeal when only the preliminary issue of maintainability had been taken up for hearing.
- Whether every complaint presented to an ICC necessarily requires a full inquiry, or whether existence of an allegation of sexual harassment constitutes a jurisdictional prerequisite.
- Whether the Industrial Court could itself examine whether the complaint disclosed an element of sexual harassment before deciding whether an ICC inquiry was necessary.
- Whether the objections concerning Rohit Anand’s alleged location and employment outside India and the territorial application of the POSH Act required determination on merits.
Petitioners’ Arguments
The petitioners principally argued that Section 18 creates a limited statutory right of appeal.
An appeal lies only against the specific recommendations enumerated in Section 18, including recommendations under Sections 13(2), 13(3), 14 and 17.
They contended that the ICC’s email dated 30 October 2023 was not a recommendation under Section 13(2) because no inquiry under Section 11 had ever been conducted.
According to them, a recommendation under Section 13 arises only after completion of an inquiry and preparation of an inquiry report. A preliminary refusal to entertain a complaint because it lacks any sexual element therefore falls outside Section 18.
The petitioners further submitted that the POSH Act empowers an ICC to inquire only into a complaint of sexual harassment. The existence of allegations satisfying the statutory concept of sexual harassment was therefore a jurisdictional fact.
They argued that Respondent No. 2 was not remediless even if Section 18 did not apply, because she could invoke the High Court’s jurisdiction under Article 226 against an unlawful refusal by the ICC.
The petitioners also strongly objected to the manner in which the Industrial Court decided the case. According to them, only the maintainability applications had been argued, yet the Industrial Court proceeded to examine the substance of the complaint, set aside the ICC’s decision and order a fresh inquiry without hearing the parties fully on merits.
Rohit Anand additionally contended that he lived and worked exclusively in Singapore, was employed by CDPQ Asia Pacific Pte. Ltd., and not Maple Infra, and that the POSH Act could not be applied beyond its territorial operation in India.
Respondent’s Arguments
Respondent No. 2 argued that the ICC’s communication was not merely an informal or preliminary communication.
It constituted a complete and final rejection of her complaint and therefore operated in substance as a decision that no action was required.
She contended that the true character of an order must be determined from its substance and effect rather than its label.
If an ICC could avoid appellate scrutiny simply by rejecting a complaint before conducting a formal inquiry, organisations could potentially defeat the statutory safeguards of the POSH Act by closing complaints at the threshold.
It was further argued that the POSH Act is welfare legislation requiring a broad and purposive construction consistent with the protection of women’s safety and dignity at the workplace.
The respondent therefore maintained that when an ICC concludes that allegations lack a sexual element and consequently closes the complaint, its determination constitutes a “recommendation” within Section 13(2) and is appealable under Section 18.
Analysis of the Law
Scope of Appeal Under Section 18
The Court first examined the statutory structure of Sections 9, 11, 13 and 18 of the POSH Act.
It recognised that Section 18 does not provide an appeal against every action or decision taken under the Act.
Since the right of appeal is statutory, it must be exercised within the boundaries prescribed by the statute.
Section 18 permits appeals against specified recommendations under Sections 13(2), 13(3), 14 and 17 and against non-implementation of such recommendations.
The crucial question was therefore whether the ICC’s threshold determination that a complaint did not contain any sexual element could properly be characterised as a recommendation under Section 13(2).
Threshold Rejection Is an Appealable Recommendation
The High Court answered this question in the affirmative.
The Court accepted that only a complaint involving allegations of sexual harassment can be entertained by an ICC. The existence of such a complaint is a jurisdictional fact for exercise of the ICC’s powers.
However, this did not mean that the ICC’s decision rejecting a complaint for lack of a sexual element was immune from statutory appeal.
Once:
- a complaint alleging sexual harassment is made;
- the employer forwards that complaint to the ICC;
- the ICC takes cognizance of it;
- the members deliberate upon the allegations; and
- the ICC concludes that the complaint contains no element of sexual harassment,
the ICC has effectively made a determination upon the complaint.
The Court held that such a conclusion constitutes a recommendation capable of being appealed under Section 18.
This is the central ratio of the judgment.
Appeal Does Not Mean Automatic ICC Inquiry
The Court made an important distinction.
The mere fact that an appeal is maintainable does not mean that every complaint rejected at the threshold must automatically be remanded to the ICC for a full inquiry.
The appellate forum can itself examine whether the complaint, on its face, contains an element of sexual harassment.
If the Industrial Court concludes that the complaint contains no sexual harassment element, it may dismiss the appeal and uphold the ICC’s decision.
Conversely, if it finds that the complaint does disclose an element of sexual harassment and that the ICC wrongly refused to conduct an inquiry, it can direct the ICC to undertake the statutory inquiry.
Thus, the appellate court’s limited task at this stage is not to decide whether sexual harassment actually occurred, but whether the complaint contains allegations capable of attracting the POSH Act.
Industrial Court Exceeded Its Remit
The High Court was sharply critical of the manner in which the Industrial Court dealt with the proceedings.
Only the maintainability application had been taken up for hearing.
Yet the Industrial Court proceeded to examine the allegations, conclude that Respondent No. 2 had worked in an unhealthy and uncomfortable environment, hold that the ICC should have conducted an inquiry, set aside the ICC communication and remand the complaint.
The High Court found that the Industrial Court had therefore gone into the merits of the appeal when it was expected to decide only maintainability.
It described the inquiry conducted by the Industrial Court as perfunctory and expressed its disapproval of the manner in which the proceedings were decided.
Significantly, the Industrial Court had not even properly answered the very maintainability issue it had undertaken to decide.
High Court Decided Maintainability Itself
Ordinarily, this defect could have resulted in the maintainability question itself being remanded to the Industrial Court.
However, extensive submissions had already been advanced before the High Court on whether the ICC communication constituted a recommendation and whether an appeal under Section 18 was maintainable.
The petitioners agreed that the High Court could decide that question directly.
The High Court therefore determined maintainability itself instead of creating another round of remand proceedings.
It ultimately held that the ICC’s communication dated 30 October 2023 was a “recommendation” within Section 13(2) and that Respondent No. 2’s appeal under Section 18 was maintainable.
Precedent Analysis
Hareesh M.S. v. Kerala State Financial Enterprises Ltd.
The petitioners relied upon this decision for the proposition that the ICC’s jurisdiction arises only where there is a complaint involving sexual harassment.
The Bombay High Court accepted the broad proposition that only a complaint of sexual harassment can be entertained by the ICC and that this constitutes a jurisdictional requirement.
However, that proposition did not answer the separate question whether the ICC’s decision that this jurisdictional requirement was absent could itself be appealed.
Dr. Prasad Pannian v. Central University of Kerala
This Kerala High Court judgment was also relied upon by the petitioners.
The Bombay High Court found it of limited relevance because, beyond recognising that an ICC can entertain only a complaint of sexual harassment, it did not decide the precise controversy concerning appealability under Section 18.
ABC v. Internal Complaints Committee, Akasa Air
The petitioners relied on this Bombay High Court decision to distinguish between:
- an ICC refusing to discharge its statutory duty to inquire; and
- an ICC conducting an inquiry defectively or contrary to natural justice.
The present Court held that the precedent did not expressly establish that an appeal was unavailable in the former category.
It further observed that the present dispute involved an allegation that the ICC’s decision itself violated natural justice. Accordingly, the reliance placed on ABC v. ICC, Akasa Air was held inapposite.
Poonam Vijay Thakkar v. Aditya Birla Capital Shared Services Ltd.
This Bombay High Court Division Bench decision supported the availability of the statutory appellate remedy.
There, a communication stating that no action was required on a sexual harassment complaint was challenged directly under Article 226.
The Division Bench recognised the availability of the Section 18 appellate remedy even against a decision refusing to take cognizance of a sexual harassment complaint.
This supported a broader interpretation of the appellate protection available under the POSH Act.
Sharanjeet Kaur v. IDBI Bank Ltd.
Respondent No. 2 relied upon the Delhi High Court’s decision in Sharanjeet Kaur, where closure of a sexual harassment complaint without conducting an inquiry was treated as an order capable of being challenged through the statutory appellate mechanism.
The precedent supported the proposition that an ICC cannot make its final rejection of a complaint non-appealable merely because it declined to conduct a formal inquiry.
Court’s Reasoning
The High Court’s reasoning can be reduced to three central propositions.
First, not every workplace grievance is a POSH complaint. There must be an allegation of sexual harassment before the ICC can exercise jurisdiction.
Second, once a woman makes a complaint alleging sexual harassment and the ICC considers that complaint and determines that it lacks a sexual element, the ICC has made a substantive determination. Such a determination cannot escape appellate scrutiny merely because the ICC chose not to conduct a full inquiry.
Third, the Section 18 appellate forum does not automatically direct an inquiry whenever such a threshold rejection is challenged. It must first examine whether the complaint actually contains an element of sexual harassment.
Accordingly, the Industrial Court on remand must decide the limited substantive question:
Did Respondent No. 2’s complaint contain an element of sexual harassment warranting an inquiry under the POSH Act?
The Industrial Court is not itself to determine whether Respondent No. 2 was actually sexually harassed. If it finds a sexual harassment element in the complaint, it may direct an ICC inquiry; if it finds none, the appeal must be dismissed.
Conclusion
The Bombay High Court ultimately adopted a middle course.
It rejected the petitioners’ contention that Respondent No. 2’s appeal was not maintainable and conclusively held that the ICC communication dated 30 October 2023 constituted a recommendation under Section 13(2) capable of appeal under Section 18 of the POSH Act.
However, it simultaneously held that the Industrial Court had acted improperly by deciding the merits when only maintainability had been heard.
Accordingly, the High Court:
- held Appeal (IESO) No. 3 of 2024 maintainable;
- dismissed the petitioners’ maintainability applications;
- partly set aside the Industrial Court’s judgment dated 4 May 2026;
- remanded the appeal to the Industrial Court for a fresh decision on merits;
- kept all merits contentions open; and
- requested the Industrial Court to decide the remanded appeal preferably within four months.
The three writ petitions were therefore partly allowed, with no order as to costs.
Key Ratio
An ICC’s decision, after considering a POSH complaint, that the allegations contain no sexual element and therefore warrant no inquiry constitutes a “recommendation” under Section 13(2) and is appealable under Section 18 of the POSH Act.
At the same time, maintainability of such an appeal does not automatically require a fresh ICC inquiry; the appellate forum must first determine whether the complaint discloses an element of sexual harassment warranting such inquiry.
Case Details
Case: Mr. Anup Vikal v. State of Maharashtra & Ors., with Ms. Chandrani Sen v. State of Maharashtra & Ors. and Mr. Rohit Anand v. State of Maharashtra & Ors.
Court: High Court of Judicature at Bombay, Civil Appellate Jurisdiction
Case Numbers: Writ Petition Nos. 7430 of 2026, 7434 of 2026 and 8418 of 2026
Judge: Justice Sandeep V. Marne
Reserved on: 4 August 2026
Date: 19 August 2026
Result: Writ petitions partly allowed; Section 18 POSH appeal held maintainable; Industrial Court’s merits decision partly set aside and appeal remanded for fresh adjudication, preferably within four months.
