Kerala High Court: In an original petition filed under Article 227 of the Constitution of India, the petitioner challenged the order of the Kerala Administrative Tribunal (‘Tribunal’) which dismissed the petitioner’s request to annul the inquiry report and halt further proceedings in a sexual harassment case, ruling that the challenge was premature and that he could avail of remedies only after the final order was issued, the division bench of A. Muhamed Mustaque and P. Krishna Kumar*,JJ. concluded that there was no jurisdictional error in the impugned order. However considering the repeated assertions made by the petitioner regarding his inability to controvert or contradict the complainant, the Court directed the disciplinary authority to ensure that the Internal Committee comply with the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (‘POSH Act’) and the Kerala Civil Services (Classification, Control, and Appeal) Rules, 1960 (‘ Kerala Civil Service Rules’). The Court emphasized that the petitioner must be given an opportunity to challenge the complainant’s testimony and present his own evidence before the Internal Committee.
Further, noting that there is currently no mechanism in place to anonymise the details of the complainant who alleges sexual harassment or other atrocities during the various proceedings related to the inquiry, the Court directed the State to formulate necessary guidelines to anonymise the complainant’s details from the public domain during the inquiry proceedings under the POSH Act.
Background
The petitioner, while serving as the Deputy Director in the District Tourism Office, faced an inquiry initiated by the Internal Complaint Committee under the POSH Act based on a complaint from a female co-worker alleging harassment by the petitioner. Following the investigation, the Internal Committee submitted a report leading to the issuance of a Memo of Charges. Later, the petitioner received a Show Cause Notice, proposing a punishment of demotion to the junior-most position within the Tourist Information Officer category.
In response, the petitioner submitted a detailed reply, raising serious objections to both the inquiry report and the proposed actions. The petitioner then approached the Kerala Administrative Tribunal, seeking to annul the inquiry report and stop further proceedings. However, the Tribunal dismissed the petitioner’s request, ruling that the challenge was premature, and that the petitioner could pursue remedies after the final order is issued. This decision is now being challenged in the present original petition filed under Article 227 of the Constitution of India.
Analysis and Decision
The Court noted that the petitioner’s contentions raised serious concerns regarding the procedural fairness of the inquiry conducted by the Internal Committee under the POSH Act. Specifically, the Court acknowledged the petitioner’s argument that he was not permitted to participate in the inquiry process, particularly with respect to the examination of the complainant, which prevented him from exercising his right to cross-examine the complainant.
The Court further noted the petitioner’s reliance on the Kerala Civil Services (Classification, Control, and Appeal) Rules, which stipulate that a delinquent employee is entitled to participate in a disciplinary inquiry and cross-examine witnesses. The Court also took into account the petitioner’s argument that the inquiry process violated the second proviso to Section 11 of the POSH Act, which mandates a fair and transparent procedure.
The Court referred to Sections 11 and 13 of the POSH Act and observed that an inquiry to be conducted under the said Act against an employee of the State must be in the form of a disciplinary inquiry to prove misconduct. Thus, the procedure to be followed in such an inquiry must be the procedure prescribed under the Kerala Civil Services (Classification, Control and Appeal) Rules or such other departmental rules applicable to the employee. However, before permitting the delinquent to cross-examine the victim of the sexual harassment, the Committee must ensure her capability to depose before them fearlessly and without any intimidation.
After referring to L.S. Sibu v. Air India Limited, 2016 SCC OnLine Ker 511, wherein the procedure to be followed in sexual harassment complaints and the manner in which the principles of natural justice should be secured during the inquiry were enunciated, the Court highlighted that the mere fact that the delinquent was not allowed to verbally cross-examine the victim does not necessarily vitiate the inquiry.
The Court further emphasised that, as a general rule, a delinquent facing a disciplinary inquiry should not be permitted to challenge intermediary proceedings until the inquiry and the subsequent decision of the disciplinary authority are concluded. If there is any violation of natural justice or the applicable statutory provisions during the inquiry, the employee can raise those issues when challenging the final decision. Allowing challenges at every interim stage would prevent any finality to the proceedings and could undermine the entire system of public administration. Therefore, the Court concluded that there was no jurisdictional error in the impugned order and upheld the Tribunal’s decision.
Considering the repeated assertions made by the petitioner regarding his inability to controvert or contradict the complainant, the Court directed the disciplinary authority to ensure that the Internal Committee comply with the provisions of the POSH Act and the Kerala Civil Services Rules. The Court emphasised that the petitioner must be given an opportunity to challenge the complainant’s testimony and present his own evidence before the Internal Committee.
Additionally, the Court directed the disciplinary authority to verify compliance with the statutory requirements, including the second proviso to Section 11(1) of the POSH Act. The Court further stated that if any irregularity was found, the matter should be remitted to the Internal Complaint Committee for correction and a fresh report.
Recognising the undue delay in the matter, the Court also instructed the respondents to complete the entire process within three months from the date of receipt of this judgment.
The Court said that, during the course of hearing this petition, it was observed that there is currently no mechanism in place to anonymise the complainant who alleges sexual harassment or other atrocities, as envisaged by the POSH Act, in the various proceedings related to the inquiry. Recognising the right to privacy as one of the fundamental rights of an individual, the Court noted that a complainant raising such grievances is entitled to ensure that her identity and whereabouts are kept anonymised from the public domain.
However, the Court emphasised that this anonymisation should be carried out in a manner that does not prejudice the rights of the employee against whom the complaint is made, particularly in the context of defending themselves during the inquiry. To address this issue, the Court directed the State to formulate necessary guidelines for anonymising complainants’ details from public domain in such matters. These guidelines must be put in place within a period of four months from the date of this judgment.
The Court noted that the Bombay High Court had issued certain guidelines in P v. A1 , which were primarily aimed at ensuring the privacy of the victim under the POSH Act during court proceedings. While the guidelines were specifically framed for court proceedings, the Court observed that if the Government finds it appropriate, it may choose to adopt any part of these guidelines, with necessary modifications, for use in the inquiry process under the POSH Act. This can be done irrespective of the fact that the Bombay High Court has later clarified that these guidelines were not intended for general application.
[Thomas Antony v. State of Kerala, OP(KAT) NO. 80 OF 2025, decided on 18-03-2025]
*Judgment Authored by: Justice P. Krishna Kumar
Advocates who appeared in this case:
For Petitioners: Elvin Peter P.J. (SR.) Jeleetta Gregory Anamika M.J. Adarsh Babu C.S.
For Respondents: Govt. Pleader Sunilkumar Kuriakose
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1. Suit No. 142 of 2021, dated 24-09-2021
