ICC in POSH cases can't hide name of instigator of false sexual harassment complaint: Bombay High Court

Internal complaints committees (ICCs) cannot shield an identified instigator of a false sexual harassment complaint by anonymising them as an “unknown source” in their report, the Bombay High Court at Goa has held.

Justice Neela Gokhale ruled that once the ICC chose to rely on the complainant’s retraction letter, it could not selectively omit the name of the person she had clearly identified as the instigator. 

The Court remarked that treating that person as merely an “unknown source” was “an error” and furnished a valid cause of action for the accused employee to appeal under Section 18 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (POSH Act).

“Having noted the contents of the retraction letter, the ICC clearly failed in the discharge of its duties to specify that the complaint was being closed on account of false allegations made against Shinde, at the behest of the instigator, who instigated the complainant,” Justice Gokhale observed. 

The Court found that the ICC had committed a jurisdictional error in rejecting the appeal as not maintainable and therefore quashed its order.

The case arose from a November 2024 sexual harassment complaint filed by a lower division clerk against her colleague in a government Industrial Training Institute under the State’s Directorate of Skill Development and Entrepreneurship.

The complainant alleged that her colleague harassed her because of her disability and stared at her in an unpleasant and unprofessional manner.

At a preliminary inquiry in January 2025, however, the complainant told the ICC that she had not drafted the complaint, was unaware of its contents and that the accused clerk had neither sexually harassed nor troubled her. 

In a detailed retraction letter dated January 6, 2025, she named the institute’s principal as the person who had prepared the complaint and coerced her to sign it to defame the accused clerk and destroy his service career.

On the strength of this retraction, the ICC characterised the case as a malicious complaint and closed the proceedings, waiving penalties against the complainant but stating that she had been instigated by an “unknown source”. 

The accused clerk challenged this before the Industrial Tribunal, contending that the ICC had effectively protected the principal by erasing his name despite the retraction squarely blaming him.

The High Court held that the accused clerk was clearly a person aggrieved by the ICC’s recommendation and that it was not necessary to show any direct injury to maintain an appeal under the POSH Act. 

It set aside the Tribunal’s order and directly modified the ICC’s conclusion, directing that the words “unknown source” be replaced so that the conclusion reads: “The respondent 3 (principal) instigated the respondent 4 (complainant) to file a false sexual harassment case against the petitioner (complainant).”

At the same time, the Court declined to direct action against the principal under Section 14 of the POSH Act. It reasoned that the provision on punishment for false or malicious complaints is limited to the woman or person making the complaint and does not provide for action against the instigator. 

However, the judge clarified that the accused clerk is at liberty to initiate appropriate proceedings against the principal before a competent forum, with an opportunity of hearing to the principal.

Advocate Shivraj Gaonkar appeared for the accused.

Additional government pleader Rishikesh Gawas appeared for the institute.

Advocate Annelise Fernandes appeared for the instigator.

[Read order]