ICC's Threshold Rejection of POSH Complaint Is a 'Recommendation', Appeal Under Section 18 Lies: Bombay High Court

Justice Sandeep Marne rules that an ICC email ruling out a sexual element without any inquiry still constitutes a Section 13(2) recommendation, making an appeal under Section 18 of the POSH Act maintainable.

A single judge of the Bombay High Court, Justice Sandeep V. Marne, sitting at the principal seat in Mumbai, has resolved a contested question under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act): whether a woman whose complaint is rejected by an Internal Complaints Committee at the threshold — without any inquiry being held — can appeal that decision under Section 18 of the Act. In a judgment pronounced on 19 August 2026 in three connected writ petitions, the court held that such a rejection constitutes a “recommendation” within the meaning of Section 13(2) of the POSH Act and is therefore appealable. At the same time, the court set aside the order of the Industrial Court, Mumbai that had gone further and decided the appeal on its merits without hearing the parties on that aspect.

The Dispute Before the High Court

Respondent No. 2, engaged as General Counsel (Vice President-Legal) by Maple Infra InvIT Investment Manager Private Limited (Maple Infra) from 1 August 2023, submitted a complaint to the company's Internal Complaints Committee (ICC) by email on 28 October 2023 at 6:22 pm, branding it a complaint under the POSH Act.

She had objected to Ms. Chandrani Sen — one of the petitioners and also an ICC member — hearing the complaint, citing conflict of interest. The complaint was accordingly forwarded to an external ICC member, Ms. Rewati Bhagwat, Director of Rewati Bhagwat Consultancy Services. Within 23 minutes of the complainant being notified of the referral, Ms. Bhagwat emailed back at 9:39 pm on 30 October 2023, stating that after deliberations among ICC members it was determined that the allegations did not have a sexual element, placing the complaint outside the ICC's jurisdiction.

On the same night, at 10:19 pm, Maple Infra terminated Respondent No. 2's employment. She had been employed for 73 days, physically attending office for 28 of them.

Respondent No. 2 challenged the ICC's email before the Industrial Court, Mumbai in Appeal (IESO) No. 3 of 2024 under Section 18(1) of the POSH Act. The petitioners — Mr. Anup Vikal, Ms. Chandrani Sen (both Maple Infra employees), and Mr. Rohit Anand (described as an employee of CDPQ Asia Pacific Pte. Ltd., a Singapore-based shareholder of Maple Infra) — applied to have themselves deleted from the appeal and separately challenged its maintainability.

On 4 May 2026, the Industrial Court rejected the petitioners' maintainability applications and then proceeded to allow the appeal itself, set aside the ICC's email, and remand the matter to the ICC for a fresh inquiry within three months. The petitioners filed the three writ petitions challenging this order.

The Central Legal Question

The precise issue framed by the High Court was whether a communication by the ICC that a complaint does not involve any sexual element — made without conducting any inquiry under Section 11 of the POSH Act — can be treated as a “recommendation” within the meaning of Section 13(2), and therefore challenged in an appeal under Section 18.

Section 18 of the POSH Act allows any aggrieved person to appeal against recommendations made under Section 13(2) (no action required), Section 13(3)(i) or (ii) (action and salary deduction), Section 14(1) or (2) (false complaint), or Section 17 (penalty for publication), or against non-implementation of such recommendations. The petitioners argued that Section 13 recommendations can only arise after the completion of an inquiry under Section 11, and since no inquiry was held here, the ICC's email was not a recommendation at all. Respondent No. 2 argued the opposite: that the ICC's determination — however arrived at — was a final and operative decision equivalent to a Section 13(2) recommendation, and that denying the appeal would allow employers to foreclose POSH proceedings at will.

How the Bench Reasoned

Justice Marne rejected a standalone reading of Section 13 as causing “violence to the legislative object” of the POSH Act. The reasoning proceeded in several steps.

The court first noted that Section 11(1) uses the word “shall”: the ICC is mandatorily required to conduct an inquiry once a complaint of sexual harassment is received. This word cannot be read as “may,” and holding of an inquiry is not optional. When the ICC bypasses this obligation entirely and simply communicates that the complaint lacks a sexual element, that communication does not escape characterisation as a recommendation merely because the procedure in Section 11 was ignored.

The court then reasoned by illustration: if an ICC, without any inquiry, writes to the employer directing termination of the respondent-employee, such a communication would carry the character of a Section 13(3) recommendation. The vice of not holding an inquiry would vitiate the recommendation — but would not remove it from the category of a recommendation. The same logic applies in the reverse situation: a ruling by the ICC that the complaint discloses no sexual element, without inquiry, is still a Section 13(2) recommendation. The employer acts on it and takes no further action, which is precisely what Section 13(2) contemplates.

The court underlined the absurdity of the contrary position: “The legislative object is not to reward the Internal Committee which violates mandate of Section 11(1) for making its decision challenge free.” If an ICC that follows the law and conducts an inquiry is subject to appellate scrutiny, an ICC that short-circuits the process entirely cannot be placed in a better position by being insulated from appeal.

Justice Marne also addressed the POSH Act's character as social welfare legislation, enacted in the wake of the Supreme Court's directions in Vishakha and Ors. v. State of Rajasthan and Ors. The court applied the principle, drawn from the Supreme Court's ruling in Regional Provident Fund Commissioner v. Hooghly Mills Company Limited, that remedial statutes must receive liberal construction and that doubts must be resolved in favour of the class for whose benefit the statute is enacted. A strict reading that left the aggrieved woman remediless whenever the ICC refused to inquire would frustrate the Act's purpose.

On the petitioners' argument that Respondent No. 2 was not remediless because she could file a writ petition under Article 226 of the Constitution, the court held this was beside the point. The question was whether the statutory appeal under Section 18 was available — not whether a High Court might exercise writ jurisdiction in some circumstances. The statutory remedy, the court observed, is broader than the discretionary writ remedy. A potential writ remedy cannot be used to contract the scope of a statutory appeal.

The court also agreed with the petitioners on one aspect: only a complaint alleging sexual harassment can be entertained by the ICC. Existence of a complaint of sexual harassment is a jurisdictional fact. However, the court clarified that whether the complaint discloses a sexual element is a question for the Industrial Court to decide in the appeal itself. If the Industrial Court, on reading the complaint, concludes that no sexual element is present, it may dismiss the appeal. If it concludes that a sexual element is present, it can direct the ICC to conduct an inquiry. Mechanical remand is not compulsory in every case.

The Industrial Court's Procedural Error

Even as it upheld the maintainability of the appeal, the High Court was sharply critical of the Industrial Court's conduct of the proceedings.

By pursis filed on 20 April 2026, the petitioners had specifically requested the Industrial Court to hear and decide only the maintainability application before taking up the dismissal application. The Industrial Court itself had recorded in paragraph 21 of its order that it was proceeding to hear and decide the issue of maintainability on a priority basis. A single issue was framed: whether the respondents succeeded in showing the appeal was not maintainable.

Despite this, the Industrial Court's order went far beyond that remit. It found that Respondent No. 2 was working in “a very unhealthy, stressful and uncomfortable environment,” ruled that the ICC had acted in disregard of natural justice by dismissing the complaint without a hearing, set aside the ICC's email, and remanded the proceedings to the ICC for inquiry within three months. All of this was done without the parties arguing merits and without the Industrial Court recording any finding that the complaint contained an allegation of sexual harassment.

Justice Marne described the maintainability objection as having been “not really decided” by the Industrial Court. Beyond a single line dismissing the maintainability applications, there was no finding that the ICC's email was a recommendation under Section 13(2) or that a Section 18 appeal against it was maintainable. The court described the approach as “egregious,” adding: “The manner in which the Industrial Court has proceeded to decide the proceedings is disquieting. This Court expresses its disapproval.”

Respondent No. 2 urged that even if the Industrial Court's order was procedurally flawed, it should be sustained because it merely ensured a proper inquiry. The court rejected this. The Industrial Court's order contained a substantive finding on the merits — that the environment was unhealthy and the expressions used by the petitioners were offensive and unwelcome — without affording the petitioners any opportunity to address those merits. The prejudice to the petitioners was, in the court's words, “writ large.”

The court also rejected the argument that the Industrial Court's remand could be saved by the analogy to Order 41 Rule 23 of the Code of Civil Procedure, 1908, which permits an appellate court to remand a case when a trial court has disposed of a suit on a preliminary point. The court found that provision inapplicable in the present context, where the High Court itself was reviewing the Industrial Court's decision-making process.

Territorial Jurisdiction in WP 8418 of 2026

Mr. Rohit Anand, petitioner in WP No. 8418 of 2026, separately contended that he was an employee of CDPQ Asia Pacific Pte. Ltd., a Singapore-based entity and not an employee of Maple Infra, and that he was resident and working in Singapore throughout the complainant's employment. He argued the POSH Act applies only to workplaces within India under Section 1(2), and that Section 2(o)'s definition of “workplace” is confined to India. He also argued that CDPQ and Maple Infra are distinct corporate entities.

The court declined to decide these questions at this stage, holding that whether Mr. Rohit Anand could be brought within the appeal and what his exact employer was are disputed issues not connected to the question of maintainability of the appeal under Section 18. All contentions on the POSH Act's applicability to Mr. Anand were expressly kept open to be decided along with the complaint.

Pending Dismissal Applications

The petitioners had also filed separate applications before the Industrial Court seeking outright dismissal of the appeal on the ground that the complaint disclosed no sexual element. The High Court declined to treat these as a prior issue. Since a finding on whether the complaint involves sexual harassment would effectively determine the final outcome of the appeal, the court directed that all issues be heard and decided together by the Industrial Court. This, the court noted, was necessary to prevent repeated rounds of interlocutory litigation — the parties having already approached the High Court three times over interim orders in the same proceedings.

Order

Justice Marne passed the following directions on 19 August 2026:

Appeal (IESO) No. 03 of 2024 filed by Respondent No. 2 before the Industrial Court, Mumbai was held maintainable under Section 18 of the POSH Act. The petitioners' applications questioning maintainability were dismissed.

The judgment and order dated 4 May 2026 of the Industrial Court in Appeal (IESO) No. 03 of 2024 was set aside in part — to the extent it allowed the appeal on merits, quashed the ICC's email dated 30 October 2023, and remanded the proceedings to the ICC.

Appeal (IESO) No. 03 of 2024 was remanded to the Industrial Court for fresh decision on its own merits, with all contentions of all parties kept open. The Industrial Court was requested to decide the remanded appeal as expeditiously as possible, preferably within four months.

The writ petitions were partly allowed and disposed of with no order as to costs.