By Anuradha Gandhi and Isha Sharma
Introduction:
Imagine this scenario: a woman employed with ABC Ltd. is subjected to an act of sexual harassment by a male employee of XYZ Ltd. During a work-related interaction. The misconduct is undeniable, yet the question that immediately follows is procedural rather than substantive- where she should seek redressal?
Can she approach the Internal Committee (IC) of her own organization, a space where she is familiar and where she works every day? Or must she file a complaint to the IC of the accused person’s organization- an unfamiliar workplace, governed by a different employer?
These questions frequently arise in what we commonly referred to as cases of third-party sexual harassment, where the complainant and the respondent/accused do not belong to the same workplace, yet the alleged act of sexual harassment has occurred in the course of work or in a work-related context. In practice, such cases often expose a troubling gap between legal rights and procedural access. The fear of steeping into an alien organizational environment, coupled with the stigma still attached to reporting sexual harassment, can deter aggrieved woman from seeking justice altogether.
It is against this backdrop that the Hon’ble Supreme Court of India recently stepped in to clarify the law, reinforcing that an aggrieved woman is entitled to file a complaint of sexual harassment with the Internal Committee of her own workplace, even if:
- The accused is not employed in her organization;
- The accused belongs to a different department, organization, or workplace or
- The accused is a third party.
Facts of the Case:
The judgment delivered by a bench of the Hon’ble J.K. Maheshwari and Vijay Bishnoi, Supreme Court, arose from an appeal filed by an Indian Revenue Service (IRS) officer, who was accused of sexually harassing an Indian Administrative Service (IAS) officer at her workplace. [1]
- The aggrieved woman lodged an FIR against the accused under the relevant provisions of the Indian Penal Code (IPC) pursuant to which a chargesheet was filed.
- Subsequently, she filed a complaint under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 also known as the POSH Act before the Internal Committee (IC) constituted under Section 9 of the POSH Act at her own department/workplace.
- The accused challenged the jurisdiction of this IC before the Central Administrative Tribunal (CAT) and later before the Delhi High Court.
- He contended that since he was not an employee of the complainant’s department, only the IC constituted at his own department was competent to inquire into the said complaint.
Both the CAT and the Delhi High Court rejected his plea and aggrieved by the same, the accused approached the Hon’ble Supreme Court by way of appeal.
Legal Arguments by the Accused
The core contention of the appellant was based on Section 11 of the POSH Act, which uses the phrase ‘where the respondent is an employee’.
The appellant argued that this phrase necessarily implies that the inquiry into a complaint for sexual harassment must be done by the IC constituted at the workplace where the respondent is employed. He further asserted that the workplace of the aggrieved woman and the respondent alleged of the act of sexual harassment have to be the same for the POSH Act to apply.
Placing heavy reliance on Section 13 of the POSH Act he argued that the IC constituted where the appellant is an employee, solely has jurisdiction to entertain complaints of sexual harassment, since it is only his employer which may take action based on the findings of the IC.
It was further argued that as per Section 19(h) of the POSH Act, the only remedy available to the aggrieved woman when the perpetrator of an act of sexual harassment is not an employee of the same department, is to initiate action under the IPC or any other law.
Supreme Court Legal Analysis:
- With regard to the appellant’s primary argument that the expression ‘where the respondent is an employee’ as mentioned in Section 11 of the POSH Act must be construed to mean that only the IC constituted at the workplace of the respondent has jurisdiction to entertain a complaint against him and not the IC constituted at the workplace of the aggrieved woman- the Supreme Court undertook a careful interpretative exercise.
To examine this contention, the Court noted that the meaning and context of the word ‘where’ as used in Section 11 becomes significant.
Relying upon settled principles of statutory interpretation, judicial precedents and legal definitions, the Court observed that when Section 11 (1) of the POSH Act is read as a whole, the word ‘where’ is quite clearly used in the context of a situation, rather than a place.
The court further clarified that Section 11(1) envisages three distinct situations or contingencies, followed by how an inquiry into a complaint is to be carried out by the IC or the Local Committee (LC), as the case may be:[2]
- Where (in case) the ‘respondent’ is an ‘employee’, the IC shall proceed to make inquiry into complaint in accordance with the provisions of the service rules applicable to the ‘respondent’
- Where (in case) no such rules exist, IC shall proceed to make inquiry into the complaint, in such manner as may be prescribed;
- ‘Or’ (in case) of a domestic worker, the LC shall, if prima facie case exists, forward the complaint to the police, within a period of seven days for registering the case under Section 509 of the IPC and any other relevant provisions of the said Code where applicable.
Accordingly, the Court rejected the appellant’s contention and reaffirmed that ‘construction of Section 11 is in the nature of a procedural section rather than one that lays down jurisdictional restraints.’
- Expansive Definitions under the POSH Act
The Supreme Court further placed considerable emphasis on the statutory definitions provided under Section 2 of the POSH Act to reinforce that the respondent need not necessarily be an employee of the same workplace where the aggrieved woman is employed.The court noted that the term ‘respondent’ has been defined under Section 2(m) as ‘a person against whom the aggrieved woman has made a complaint under Section 9’. It does not require the ‘respondent’ to be someone working at the same workplace as the aggrieved woman, rather the exact words used are ‘a person’ which can be any person against whom complaint has been made.
Further, the definition of ‘employee’ as stated in Section 2(f) of the POSH Act means a ‘person employed at a workplace..’. The court then examined the definition of workplace as statted in section 2(o) of the POSH Act which has been given a wide meaning, particularly in clause (v) of Section 2(o), which posits that the word ‘workplace’ also includes ‘any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey’.
The expansive definitions of these words enable the IC constituted at the aggrieved woman’s workplace to exercise jurisdiction over an employee of a different workplace. None of these definitions provide that the ‘respondent’ must necessarily be an employee of the same workplace where the aggrieved woman works. Any person against whom a complaint is filed by the aggrieved woman before the IC constituted at her workplace under Section 9, is a ‘respondent’ under the POSH Act and as per the scheme of Section 11(1), if the ‘respondent’ is an ‘employee’, his service rules shall apply and in the absence of service rules, inquiry shall be conducted as prescribed, but the ‘respondent’ need not necessarily be an employee of the same ‘workplace’, the Court remarked.
- Criminal Remedies are not a substitute for POSH Proceedings
The Court also addressed the argument advanced by the appellant that in view of Section 19(h) of the POSH Act, the only remedy available to the aggrieved woman when the perpetrator of sexual harassment is an outsider (employee of a different workplace) is to register a complaint under the IPC (now replaced by BNS) through the employer.Rejecting this contention, the Supreme Court clarified that the criminal remedies under the IPC (now BNS) are not in derogation of, nor a substitute for, proceedings under the POSH Act. The court drew attention to Section 19(h) of the POSH Act, which casts a statutory duty upon the employer to assist and facilitate the initiation of criminal proceedings, if the aggrieved woman so desires.
However, this facilitative obligation does not imply the exclusion of the POSH redressal mechanism. On the contrary, the Act envisages that both remedies may operate simultaneously, depending on the nature of the complaint and the choice of the aggrieved woman.
‘Even where the ‘respondent’ is not an employee anywhere, criminal proceedings may be initiated and such initiation of criminal proceedings must be facilitated by the employer,’ the court held.
At the same time, this does not curtail the power or jurisdiction of the IC to inquire into complaint under the POSH framework.
- POSH Act as a Social Welfare and Constitutional Legislation
The Supreme Court further emphasized that the POSH Act was enacted by the legislature to address the legislative vacuum highlighted by the Court in Vishaka vs State of Rajasthan. The enactment of the statute is firmly rooted in the constitutional mandate to uphold a woman’s right to equality under Articles 14 and 15 and her right to life with dignity under Article 21 of the Indian Constitution.
The POSH Act does not merely punish act of sexual harassment, but actively imposes a legal duty on employers to prohibit and prevent harassment, it ensures that the women in each workplace have open access to a mechanism for redressal of complaints of sexual harassment in the form of IC. It aims to bring about safety and accountability in the workplace in order to enable women to pursue their career without the fear of a hostile environment. It is thus seen that the POSH Act is a social welfare legislation and it must be interpreted as thus.
Keeping this legislative objective in mind, the Court held that compelling an aggrieved woman to approach the IC constituted at the workplace of the respondent in every third-party sexual harassment case would dilute the protections envisaged under the Act. Such an approach would require an IC to inquire into incidents that may or may not have occurred within the employer’s premises or in relation to their employer’s work environment.
‘A narrow interpretation of provisions of the POSH Act, in order to hold that only the IC of the workplace of the ‘respondent’ has jurisdiction to inquire into complaints against him, irrespective of where the workplace of the aggrieved woman is or where the alleged act of sexual harassment took place, would undermine the POSH Act’s remedial social welfare intent since it would create significant practical hurdles for the aggrieved woman.
Such an interpretation would beget several procedural and psychological barriers for the aggrieved woman. The aggrieved woman, who has allegedly suffered an act of sexual harassment, would be compelled to file a complaint before the ICC constituted at the workplace of the ‘respondent’. It would create a situation where the aggrieved woman would have to appear before the ICC at an alien workplace in order to pursue her remedy in law,’ the court noted.
Most importantly, the Court underscored that the introduction of Section 2(o)(v) which deliberately enlarges the scope of the term ‘workplace’- was intended to prohibit acts of sexual harassment at any place incidental to work, including places visited by employees arising or during the course of employment. To interpret the Act in a manner that confines jurisdiction solely to the respondent’s workplace would completely defeat this expanded and progressive scope.
For all these reasons, the Supreme Court unequivocally rejected the appellant’s argument and reaffirmed that the IC constituted at the workplace of the aggrieved woman is competent to entertain and inquire into complaints of sexual harassment.
- Jurisdiction to Inquire vs. Authority to enforce Disciplinary Action
Further with regard to the appellant’s contention that only the IC constituted in the respondent’s department should have jurisdiction to entertain and inquire into the complaint, on the ground that only his employer possesses the authority to initiate disciplinary action against him. It was argued that for an inquiry and its outcome to carry sanctity and legal consequence, the inquiry must necessarily be conducted by an IC constituted under the aegis of the respondent’s employer.
While the argument may appear persuasive at first glance, the Court held that it found to be misaligned with the scheme and provisions of the POSH Act.
The Court held that the appellant’s contentions fails to differentiate between two distinct functions under the Act:
- the authority to inquire into the facts of the complaint and
- the authority to enforce or act upon the findings of the inquiry.
The Court clarified that while the IC constituted at the workplace of the aggrieved woman is empowered to conduct the factual inquiry, it is not necessary that the same employer must have the authority to impose disciplinary penalties on the respondent.
The Court observed that Section 13 of the POSH Act clearly contemplates this distinction. Upon completion of the inquiry, the IC is required to submit its findings and recommendations to the employer. Where the respondent is employed with a different organization, such findings and recommendations can be forwarded to the employer of the respondent, who is then required to take appropriate action in accordance with the services rules or prescribed procedures.
The Court emphasized that Section 13 does not mandate that the employer of the aggrieved woman and the respondent must be one and the same. It is merely the factual inquiry which is to be conducted by the IC constituted at the workplace of the aggrieved woman and that its findings be forwarded to the employer of the respondent for further necessary action i.e., initiation of disciplinary proceedings as per service rules or to take action as prescribed.
In view of the above, the Supreme Court rejected the appellant’s argument and held that the jurisdiction to inquire into a complaint of sexual harassment cannot be curtailed merely on the ground that the disciplinary authority vests with a different employer.
Conclusion:
In view of the above-mentioned analysis, the appeal was dismissed and it was held that the IC constituted at the aggrieved woman’s workplace has the jurisdiction to entertain and inquire into complaints of sexual harassment, even in third-party situations.
This judgment is a significant step towards strengthening the protective framework under the POSH Act. By recognizing the jurisdiction of the IC at the aggrieved woman’s workplace-even in third party sexual harassment cases- the court has ensured that access to justice must be practical, safe, and effective.
For organizations and Internal Committees (ICs) this ruling serves a crucial reminder that jurisdiction under the POSH Act must be understood expansively, in line with the Act’s intent to provide a safe and dignified working environment for women across organizational boundaries.
[1] Dr. Sohail Malik v Union of India on 1O December, 2025