The Bombay High Court has held that writ petitions challenging the findings or procedure of Internal Complaints Committees (ICCs) constituted by private employers under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) are not maintainable. [ABC v. ICC, Akasa Air]
Justice NJ Jamadar ruled that ICCs and private employers do not fall within the definition of “State” or “instrumentality of the State” under Article 12 of the Constitution and cannot be subjected to writ jurisdiction unless they perform a public duty. The Court clarified that any grievance against an ICC’s findings must be pursued before the Appellate Authority under Section 18 of the POSH Act rather than through a writ petition.
"By a catena of decisions, it is firmly crystallized that a writ will lie against the State or the instrumentality of the State, and a private entity only when such private entity performs a public function or discharges a public duty involving a public law element," the Court said.
The petitioner, a captain with Akasa Air, was accused by a trainee pilot of making inappropriate remarks and creating discomfort during training. After a detailed inquiry, the ICC submitted its final report on February 12, 2025, recommending a final warning to the petitioner, a six-month bar on upgrades, a POSH refresher module and suspension of certain travel privileges.
The pilot challenged the ICC report alleging denial of cross-examination, lack of oral hearing and breach of confidentiality. He argued that the inquiry was “marred by severe procedural violations”.
Justice Jamadar clarified that the judgment of the Karnataka High Court in Ms. X v. ICC, Ola Cabs (2024), which held that an employer’s refusal to conduct an inquiry could attract writ jurisdiction, could not be read to mean that all ICC proceedings are open to writ review.
“A distinction is required to be drawn between cases where the ICC refuses to discharge its statutory duty to inquire into a complaint of sexual harassment, and cases where the ICC allegedly conducts the inquiry not in conformity with the Act or rules,” the Court said.
The Court also noted that cross-examination is part of “fair play in action” only when credibility is in doubt or factual disputes exist.
“Where there is no lis regarding facts, or when the basic facts are admitted, the absence of a formal opportunity of cross-examination per se does not vitiate the decision."
Holding that the case did not involve any failure of public duty, the Court dismissed the writ petition but allowed the petitioner to file an appeal before the Appellate Authority within four weeks.
The petitioner was represented by Advocates Ankita Singhania, Burzin Somandy, Swati Chaudhary, Yukti Mitta, Ariana Somandy and Tejaswita Nalwade Somandy.
The ICC was represented by Advocate Payel Chatterjee, briefed by Advocates Suchita Choudhry and Pranay Tuteja from Trilegal.
The complainant was represented by Advocates Rajendra Mishra with Saurabh Mishra.
[Read Judgment]