Does “No Inquiry, No Appeal” Hold Water in POSH Cases?

When an Internal Committee (“IC”) rejects a sexual harassment complaint, at the threshold, on the ground that it does not contain a “sexual element”, can that decision be challenged under Section 18 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”), even though no inquiry was conducted?

The Bombay High Court, in the case of Anup Vikal v. State of Maharashtra & Ors., has clarified that such a threshold decision is not immune from challenge and can be appealed under Section 18 of the POSH Act.

 

The Industrial Court’s Approach

The complainant challenged the IC’s decision under Section 18 of the POSH Act. The respondents argued that the appeal was not maintainable because the IC had not conducted an inquiry and therefore had not made a “recommendation” under the POSH Act.

The Industrial Court rejected the applications questioning maintainability. It then proceeded to consider the appeal on merits, set aside the IC’s decision and remanded the matter to the IC for an inquiry.

 

The Bombay High Court’s Decision

The High Court held that the appeal was maintainable.

It clarified that an IC’s decision does not cease to have the character of a “recommendation” under the POSH Act, merely because no inquiry has been conducted. Where an IC, upon considering a complaint, concludes that it does not constitute sexual harassment and closes the matter on that basis, such a decision can be treated as a recommendation and challenged.

The Court reasoned that a contrary interpretation would allow the statutory right of appeal to be defeated simply by rejecting complaints at the threshold, without conducting an inquiry.

The High Court further clarified that while the failure to conduct an inquiry may vitiate the IC’s decision, it does not take that decision outside the scope of the appellate remedy under the POSH Act.

 

What Does the Judgment Mean?

• A threshold rejection can be appealable: An IC’s decision that a complaint does not contain a sexual element may constitute a “recommendation” under Section 13 (2), even where no inquiry under Section 11 has been conducted.
  

• No inquiry does not mean no appeal: An IC cannot avoid appellate scrutiny under Section 18 merely by rejecting a complaint before conducting an inquiry.
  

• For organizations and ICs, the decision underscores the need to carefully assess and document the basis for closing a POSH complaint at the threshold, as such a decision may itself be subject to appellate scrutiny under Section 18.