Oral Complaint Can't Substitute Requirement Of Written Compliant For Conducting Inquiry Under POSH Act: Kerala High Court

In the facts of the case, the local level committee constituted under Section 6 of the Act initiated the inquiry based on an anonymous complaint.

Justice P.G. Ajithkumar clarified that while a written complaint is not mandatory under the law if the complainant is unable to submit one, it is still essential for a complaint to be made as per the provisions of the POSH Act for initiating an inquiry under Section 11 of the Act.

“It may be noted that the 4th respondent submitted complaints against the petitioner before the Police, Women's Commission, Labour Court, etc. Having submitted such complaints, it cannot be said that the 4th respondent was incapable of making a written complaint to the 2^nd respondent-committee. Therefore, in the facts and circumstances of this case, the oral complaints made by the 4th respondent cannot be a substitute for the complaint in writing contemplated by Section 9 of the POSH Act. In that view of the matter, the inquiry conducted by the 2nd respondent becomes illegal.”

The writ petition was filed by the Manager of an IT Company aggrieved by the enquiry report of the Local Level Committee constituted under the Posh Act based on the complaint of an employee who was working as an accountant-cum-manager in the company. The employee was later terminated for dereliction of duty. It is to be noted that an anonymous complaint was received by the District Collector who forwarded it to the Local Level Committee for taking action.

As per the report, the petitioner was directed to pay rupees 19.80 lakhs as compensation to the complainant within 80 days, to tender an apology in writing to the employee in writing for causing her professional and personal damages. He was also directed to constitute an internal complaints committee within the officer. The petitioner has also challenged the order of the District collector directing the petitioner to comply with the following conditions.

The Court noted that the Local Level Committee, constituted under Section 6 of the POSH Act conducted inquiry as contemplated under Section 11 of the Act.

The employee submitted that the writ petition was not maintainable and that the petitioner ought to have preferred an appeal as per the provisions of the POSH Act. It was stated that inquiry was conducted by the Local Level Committee as per law based on the complaint received and that she also gave complaint against sexual harassment which was also proved by statements of other witnesses.

The Court observed that Section 11 of the POSH Act contemplates and that Section 12 of the POSH Act provides that inquiry shall be on a written complaint made by the aggrieved person. It also noted that Rule 6 of the POSH Rules deals with the procedure for submission of the complaint.

Further, the Court referred to the decision in Prasad Pannian (Dr.) v Central University of Kerala (2020), to state that even an oral complaint can be given if the complainant is not in a position to give her complaint in writing, but it noted that complaint was mandatory to be given.

The Court thus stated that a complaint is mandatory to be given for initiation of inquiry under the POSH Act. It stated, “The need to have a complaint to initiate an inquiry by the internal committee, as the case may be, the local committee is emphasised consistently in the said decisions. Going by the scheme of the statute also, the committee can commence inquiry under Section 11 of the Act only on receipt of a complaint alleging sexual harassment as defined in Section 2(n) of the POSH Act. The period within which the said complaint has to be filed is also mandatory.”

In the facts of the case, the Court stated that the employee failed to give a complaint and that inquiry was carried out without a complaint. It thus stated that the inquiry conducted by the local level committee was illegal.

Considering the allegations raised by the employee, the Court noted that the petitioner did not touch or demand sexual favours from her. It noted that the petitioner created a hostile work environment and exhibited unfair and cruel behaviour. The Court observed that this would not amount to 'sexual harassment' under the POSH Act.

Court stated, “Those acts and behaviour of the petitioner would not come within the definition of “sexual harassment”. Of course, the petitioner created a hostile working environment amounting to a circumstance mentioned in Section 3 of the POSH Act. But the same was not connected to any kind of sexual harassment, and therefore the 2nd respondent did not have jurisdiction to conduct an inquiry under Section 11 of the POSH Act. The dispute and harassment meted out on the 4th respondent were more relating to her employment and the reason thereof was the petitioner's personal grudge against her. It was a labour dispute rather than a dispute connected to sexual harassment.”

Further, the Court found that the inquiry carried out by the local-level committee was contrary to the principles of natural justice and in violation to the POSH Rules.

As such, the Court set aside the inquiry report of the local-level committee and order of the District Collector against the petitioner.

Case Number: W.P.(C) NO. 39915 OF 2018

Case Title: Abraham Mathai v State of Kerala

Citation: 2024 LiveLaw (Ker) 788