At 6:22 pm on 28 October 2023, a former General Counsel emailed her employer’s Internal Committee a complaint under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter, referred to as the “POSH Act”). At 9:16 pm on 30 October she was told that the complaint had been forwarded to an external member of the Committee; twenty-three minutes later, at 9:39 pm, that member replied that the allegations had no sexual element and fell outside the Committee’s jurisdiction. Forty minutes after that, at 10:19 pm, her employment was terminated. The appeal remains pending, all contentions on the merits kept open.
In Anup Vikal v. State of Maharashtra, Justice Sandeep Marne held that the 9:39 pm email was a ‘recommendation’ under Section 13(2) of the POSH Act, and therefore appealable under Section 18. This piece argues, firstly, that the Court was right to treat a threshold rejection as a recommendation, since a Committee cannot insulate its decision by declining the inquiry that Section 11(1) makes mandatory; secondly, that appealability could not by itself entail a remand in every case, which is why the Court permitted the appellate forum to screen the complaint instead. Those premises produce its principal proposition, namely that the screening function has moved to a forum for which the statute supplies no standard. The judgment’s lasting difficulty lies in the boundary it declines to draw between screening and the merits.
Threshold Rejection as a Recommendation
The employer’s argument had textual force, as Section 13(2) speaks of a Committee that “arrives at the conclusion that the allegation against the respondent has not been proved”. Proof presupposes an inquiry under Section 11, and Section 13(1) requires the recommendation to sit inside a report delivered once it concludes; a Committee which never inquires therefore produces nothing appealable under Section 18, and Justice Marne accepted that the submission “may appear to be correct” (para 52).
However, he rejected it for two reasons. First, Section 11(1) provides that the Committee “shall” proceed to inquire, and the object of the Act forbids reading “shall” as “may” (para 53); a determination cannot be insulated by the very default that produced it, since “a reverse engineering method cannot be adopted” (para 54). Second, the employer acts on the decision by taking no further action, which is what Section 13(2) contemplates (para 55). The conclusion is broad: “every decision taken by the Internal Committee on a complaint of sexual harassment would form a ‘recommendation’ within the meaning of Section 13(2) or 13(3)”.
The symmetry is the strongest part of the reasoning as, were a Committee to recommend dismissal without inquiry, the accused employee would need an appeal as much as the complainant does; the same logic must serve the woman whose complaint is closed, since the legislative object “is not to reward the Internal Committee which violates mandate of Section 11(1)” by rendering its decision challenge free (para 57). Poonam Vijay Thakkar and Sharanjeet Kaur point the same way, and the holding answers the concern raised on this blog in April 2025.
The stronger objection is that appealability proves too much, since it appears to follow that every complaint so rejected must return for inquiry, whatever its contents. The objection has force, because the existence of a complaint of sexual harassment is a jurisdictional fact for the exercise of Section 11 (para 65), and compelling inquiry into every grievance so labelled would convert that precondition into a formality. The objection, however, goes to what follows from appealability rather than to appealability itself, and paragraph 65 is the Court’s answer; that answer creates the difficulty examined below.
Relocation of the Screening Function
Maintainability, the Court held, does not entail automatic remand, for “it is not necessary that the Court must mechanically make on order of remand” (para 65). The Industrial Court must first satisfy itself, on a “plain reading of the complaint”, that it discloses an element of sexual harassment. Failing that, the appeal is dismissed and the Committee’s decision stands (para 99). The respondents, moreover, must be heard on that question before any inquiry is directed (para 85).
A Committee that dismisses a complaint at the threshold has, on the Court’s own finding, breached a mandatory duty. Where a public authority has failed to exercise a jurisdiction vested in it, the settled course is to compel “the performance in a proper and lawful manner” of that function, as held in Comptroller and Auditor General v. K.S. Jagannathan; the Karnataka High Court took that course in Ms (X) v. Internal Complaints Committee, directing a Committee which had declined jurisdiction to inquire within ninety days and to pay compensation. Jagannathan does permit a court to pass the order the authority ought to have passed, however it contemplates a court acting upon the material that authority was bound to consider, and here no inquiry has produced any. Under paragraph 65 a different body performs the omitted function instead, and where it agrees with the Committee the breach delivers precisely the outcome the Committee sought; the reward refused at paragraph 57 is thereby supplied one level up. Strictly, the Industrial Court exercises a power of its own, appellate and statutory, rather than the Committee’s first-instance jurisdiction; functionally, however, it performs the identical operation on the identical materials, and without the standard that would render it reviewable.
A related tension runs through the judgment. At paragraph 66 the question whether the complaint discloses sexual harassment “takes a backseat and becomes irrelevant” for maintainability, while at paragraph 85 it becomes the gateway to any relief. Access to the forum is therefore generous, and access to a remedy narrower.
The Boundary Between Screening and Merits
Neither the Act nor the POSH Rules, 2013 contains a screening stage on which the Industrial Court might model itself. Rule 7 moves from the filing of a complaint to its service on the respondent within seven working days, to a reply within ten, to an inquiry conducted in accordance with natural justice; there is no preliminary scrutiny, no threshold order, and no requirement of reasons for declining to proceed. Committees have operated such a filter regardless, and the judgment supplies no test for it.
“Plain reading” is inadequate because it does not identify which of two questions the Industrial Court is answering. The first asks whether the pleaded facts, assumed true, are capable of falling within Section 2(n); the second asks whether those facts, once weighed, establish that the section is satisfied. The first is screening and the second is the merits. Paragraph 99 gestures at the distinction, since the forum “is not going to inquire whether the Respondent No. 2 is sexually harassed or not”, however paragraph 85 pulls the other way by requiring that the respondent be heard on the question. A hearing at which the accused contests the characterisation of an untested complaint is difficult to confine to capability, and it invites a finding that the allegations do not establish what they assert, which is the merits arriving without evidence. This matters because the Committee’s function is, as the Bombay High Court put it in ABC v. Internal Complaints Committee, “essentially a fact finding inquiry”, and a fact-finding body is displaced once the facts are characterised elsewhere.
The Kerala Division Bench in Dr. Prasad Pannian held that conduct outside the enumerated sub-clauses is covered where it is sexual in character, and that this “will depend upon the materials placed on record and on a case to case basis” (para 14), so the question resists resolution on the face of a complaint. Hareesh M.S. is the cautionary illustration, as the Court there read a complaint, found no sexual element, and quashed the notice. Allegations of the quid pro quo and hostile environment variety, which turn on hierarchy, pattern and reception, are the ones an undefined test will miss.
A legally adequate threshold test needs four components. It would assume the pleaded facts true, so that disbelief is never a ground of rejection; it would confine itself to the complaint and the documents it relies upon, excluding the employer’s version and every disputed question of fact; it would ask only whether those facts, so assumed, are capable of falling within Section 2(n) read with Section 3, directing an inquiry wherever they are; and it would require written reasons within a fixed period, so that the screening is reviewable. On such a test, dismissal would be available only where the complaint, taken at its highest, discloses no conduct of a sexual character at all. That residue is narrow. It captures a complaint whose allegations, however serious, describe conduct of no sexual content whatever, such as the abuse and obstruction alleged in Hareesh M.S., and excludes every complaint whose characterisation turns on context.
Delay and Institutional Incentives
Section 11(4) allows ninety days for an inquiry, and Rule 14(c) requires every employer to report annually the number of cases pending beyond that period. Yet the complaint in Anup Vikal, made on 28 October 2023, has produced three rounds of interlocutory writ litigation and, as at the remand of 19 August 2026, no inquiry at all. An undefined screening stage, contested and subject to no outer limit, adds a further layer. Sharanjeet Kaur tells a similar story: a complaint of 2018, closed in 2020 without inquiry, vindicated on appeal only in December 2024. The resulting incentive is foreseeable rather than established, since no data yet exists on employer responses, and it is built into the judgment, because a threshold order surviving appellate screening ends the matter, whereas an inquiry does not. This runs against Aureliano Fernandes v. State of Goa, where the Supreme Court recorded “serious lapses in the enforcement of the Act even after such a long passage of time” and has retained supervision over compliance since.
Conclusion
Anup Vikal rightly refuses to let an Internal Committee escape scrutiny by declining to do its job, and paragraph 65 rightly declines to make remand automatic; what the judgment leaves undone is the boundary between them. Until the appellate power is confined to the capability question set out above, or Section 11 acquires a scrutiny stage with reasons and a fixed period, the filter will operate on whatever standard the forum of the day selects. The statute’s silence here was never neutral, since someone will always screen; what Anup Vikal settles is only who.