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Strikes Down Flawed POSH Probe: No Complaint Copy, No Cross-Exam Means No Fair Hearing
In a ruling emphasizing fairness even in women-centric laws, the has quashed an report that led to an employee's termination, citing blatant violations of natural justice principles under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). Justice M.B. Snehalatha, in WP(C) No. 31952 of 2025 ( XXX and Anr. v. and Ors. , 2026 LiveLaw (Ker) 217), set aside the controversial findings and ordered a fresh inquiry—without touching the merits of the allegations.
From RTI Revelation to Writ Challenge: The Petitioners' Battle
Two petitioners—one terminated from service as an office attendant via , the other facing adverse consequences—challenged a termination order (Ext. P2, dated 14.08.2025) and the underlying ICC report (Ext. P3) from the . The saga began with a sexual harassment complaint, but the petitioners claimed they were blindsided: no copy of the complaint was served beforehand, despite obtaining it later via RTI after the ICC's order. Summoned abruptly, they were denied cross-examination of the complainant and witnesses, barred from knowing or calling their own witnesses, and left without a fair shot at defense. Timeline highlights included objections in March 2025 and notices through September-October 2025, culminating in the writ petition admitted on 17.03.2026.
Petitioners Cry Foul on Procedure, Respondents Defend the Process
Petitioners, represented by Advocates Shibi K.P., C.K. Sunil, and Vidya K.G., hammered on POSH Act and Rules breaches—specifically —arguing the ICC's inquiry ignored audi alteram partem by withholding the complaint, reply opportunity, and cross-examination rights. They portrayed the process as a "gross violation" turning statutory protection into a witch hunt.
Respondents, including the Mission, college principal, and ICC (via Advocate K.R. Ganesh), countered that petitioners knew the allegations, as the complaint was "shown" during hearings. The ICC, as a fact-finding body, deemed testimonies consistent enough for adverse findings, justifying termination. They urged the court to dismiss the writ, pointing to 's appeal remedy, arguing POSH orders aren't directly challengeable under .
Decoding the Law: POSH Must Bend to Natural Justice
Justice Snehalatha dissected , mandating inquiries follow service rules like Kerala Civil Services (CCA) Rules for government employees—essentially a disciplinary probe proving misconduct. Rule 7(2) demands sending a complaint copy within seven working days; Rule 7(3) allows 10 days for reply and witness lists; Rule 7(4) insists on natural justice.
Drawing from the Supreme Court's
Aureliano Fernandes v. State of Goa
(2023 KHC Online 6567), the bench underscored: even POSH's protective tilt requires informing the accused, supplying evidence, and granting a hearing. The respondents' counter affidavit admission—
"complaint was shown... during the hearing"
—sealed the deal, confirming no prior service. Records showed no cross-exam, vitiating the probe prima facie.
Key Observations from the Bench
"Serving a copy of the complaint and other relevant documents to the delinquent is mandatory under and the failure to do so is in violation of the principles of natural justice."
" provides that Internal Committee shall conduct the enquiry in accordance with the principles of natural justice by providing reasonable opportunity to the delinquent to be heard and to present their case.""It is evident that enquiry was conducted by ICC by violating the principles of natural justice and therefore, Ext.P3 report is vitiated and liable to be set aside."
"The records would also reveal that no opportunity was given to the petitioners to cross-examine the complainant and witnesses. Thus, prima facie, there is merit in the contention... that there is violation of the principles of natural justice."
Fresh Start Ordered: Implications for POSH Probes Nationwide
The court set aside Ext. P3, directing Respondents 4 and 5 (ICC and Principal) to redo the inquiry within two months per law. Crucially: "This Court has not considered the merits of the complaint filed by the complainant and the defence canvassed by the petitioners."
This precedent strengthens accused rights in POSH cases, mandating procedural rigor to prevent miscarriages. Employers and ICCs must now prioritize document service and hearings, potentially slowing probes but safeguarding due process. For workplaces, it's a reminder: justice delayed by fairness isn't injustice denied.
