POSH Act: Kerala High Court directs State to issue guidelines to protect identity of complainants

The Kerala High Court recently directed the State government to issue guidelines to protect the identity of those filing complaints under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). [Thomas Antony v. State of Kerala & Anr.].A Bench of Justices A Muhamed Mustaque and P Krishna Kumar passed the direction upon noticing that there is no mechanism to anonymise complainants at present."When the right to privacy is recognized as one of the important facets of the fundamental rights of a person, a complainant who raises such a grievance is also entitled to ensure that her whereabouts are anonymised from the public domain. That said, this should be done in such a manner not prejudicial to the rights of the employee against whom the complaint is made, while he defends the enquiry. For this purpose, we direct the first respondent (Government of Kerala) to formulate necessary guidelines within a period of four months," the Court said in its judgment. The Court also said that the government can consider the guidelines issued by the Bombay High Court in a 2021 judgment irrespective of the fact that the Bombay High Court had later clarified that the said guidelines are not meant for general application..The issue came to the attention of the Court when it was dealing with a petition moved by a former Deputy Director in the District Tourism office who was accused of harassing his female coworker. Enquiry proceedings were initiated under the POSH Act and based on the report of the Internal Complaints Committee (ICC), he was issued a charge notice as well as a show cause notice proposing to lower him to the junior most in the category of Tourist Information Officer.The petitioner first moved the Kerala Administrative Tribunal to quash the ICC report. He moved the High Coujrt with the present petition challenging the tribunal's refusal to set aside the ICC report. The petitioner contended that although the ICC examined the complainant, he was not permitted to cross-examine her or participate in the enquiry at all. .However, the High Court noted from relevant precedents that before permitting the accused to cross-examine the victim of sexual harassment, the ICC has to ensure her capability to depose before them fearlessly and without any intimidation."Therefore, the mere fact that the delinquent was not permitted to verbally cross-examine the victim, it cannot be said that the inquiry is vitiated," the Court reasoned. The Court also observed that the person facing disciplinary inquiry should not be permitted to challenge the intermediary proceedings until the inquiry and the consequential decision of the disciplinary authority are concluded. "If at all there is any violation of the principles of natural justice or the relevant statutory provisions while conducting the enquiry, the employee can raise those matters while challenging the final outcome. If the enquiry proceedings or disciplinary actions are subjected to challenges at every interim stage, there will not be any finality to the process and that will affect the very system of public administration," the Court said. Viewed from this lens, the Court did not find any error in the tribunal's order. However, because the petitioner repeatedly asserted that he was not permitted to contradict the complainant in any manner, the Court deemed it appropriate to dispose of the petition with appropriate directions to ensure the same."In view of the provisions contained in Section 11 of the POSH Act, the disciplinary authority should ensure that the Internal Committee proceeded with the enquiry in the manner provided in the Kerala Civil Services (Classification, Control and Appeal)Rules and the petitioner was given an opportunity to discredit the complainant or to adduce evidence before the Committee," the judgment stated. .The petitioner was represented by Senior Advocate Elvin Peter PJ and advocates KR Ganesh, Jeleetta Gregory, Anamika MJ and Adarsh Babu CS.Government Pleader Sunilkumar Kuriakose appeared for the State. .[Read Judgment]