Pre-POSH Domestic Enquiry | Fairness Under Standing Orders Suffices, Not Vishaka Committee Structure: Bombay HC

The Bombay High Court has clarified that the validity of a domestic enquiry into sexual harassment allegations cannot be invalidated solely on the ground that a formal Complaints Committee under the Vishaka guidelines was not constituted. The Court emphasized that procedural fairness, not structural form, is the cornerstone of lawful disciplinary proceedings.

Background & Facts

The Dispute

The petitioner, GlaxoSmithKline Pharmaceutics Limited, terminated the services of respondent No. 1, Suhas Shankar Pagare, a long-serving employee since 14.05.1990, following a domestic enquiry that found him guilty of sexual harassment against a female employee. The enquiry was conducted under the Model Standing Orders applicable to the establishment. The Industrial Court at Nashik, in Reference (IT) No. 3 of 2013, set aside the termination, holding the enquiry illegal for failing to constitute a Complaints Committee as mandated by the Supreme Court in Vishaka v. State of Rajasthan (1997) 6 SCC 241.

Key Facts

• Respondent No. 1 was employed with the petitioner since 14.05.1990 in the production department at Nashik.
• He had a history of disciplinary actions: eight warnings, seventeen suspensions, and three stoppages of increments between 1990 and 2010.
• In 2010, he was elected Vice President of respondent No. 2, the Glaxo Laboratories Employees Union.
• On 07.02.2011, a female employee returned from medical leave and alleged her department was changed at the instance of respondent No. 1.
• On 19.02.2011, she filed a formal complaint of sexual harassment and physical assault against respondent No. 1.
• The petitioner issued a Show Cause Notice on 01.04.2011, followed by a Charge Sheet on 08.06.2011.
• Respondent No. 1 submitted replies on 01.04.2011 and 14.06.2011, challenging the complaint and demanding action against the complainant.
• Dr. U.S. Kharote was appointed Enquiry Officer on 24.06.2011.
• The domestic enquiry proceedings were conducted between 24.06.2011 and 18.11.2011, recorded in English though conducted in Marathi.
• Respondent No. 1 was represented by Mr. Prashant Dev and was permitted to examine witnesses.
• The Enquiry Officer submitted his report on 29.12.2011, holding respondent No. 1 guilty.
• The petitioner issued a termination order on 07.12.2012.
• Respondent No. 1 filed a ULP complaint (No. 46 of 2012) before the Labour Court on 10.10.2012, alleging victimization; it was withdrawn on 09.01.2013.
• An industrial dispute was referred to the Industrial Tribunal as Reference (IT) No. 3 of 2013 on 10.01.2013.
• The Tribunal passed the impugned Part I Award on 09.12.2025.
• The petitioner filed the present writ petition on 15.01.2026.

Procedural History

• 14.05.1990: Respondent No. 1 joins petitioner’s employment.
• 2010: Respondent No. 1 elected Vice President of Union.
• 07.02.2011: Female employee resumes work and alleges departmental change.
• 19.02.2011: Formal complaint of sexual harassment lodged.
• 01.04.2011: Show Cause Notice issued.
• 08.06.2011: Charge Sheet issued.
• 24.06.2011: Domestic enquiry commences.
• 18.11.2011: Domestic enquiry concludes.
• 29.12.2011: Enquiry Officer’s report submitted.
• 07.12.2012: Termination order issued.
• 10.10.2012: ULP complaint filed by respondent No. 1.
• 09.01.2013: ULP complaint withdrawn.
• 10.01.2013: Industrial dispute referred to Tribunal as Reference (IT) No. 3 of 2013.
• 09.12.2025: Industrial Tribunal passes Part I Award vitiating the enquiry.
• 15.01.2026: Writ Petition No. 2297 of 2026 filed before Bombay High Court.

The Parties' Positions

Petitioner: Argued that the domestic enquiry was conducted in strict compliance with the certified Model Standing Orders, which have statutory force. The Enquiry Officer followed due process: notice, charge sheet, representation, evidence, and opportunity to defend. The absence of a formal Complaints Committee was immaterial, as the procedure satisfied natural justice. Relied on Medha Kotwal Lele and Aureliano Fernandes to argue that Standing Orders, when amended, constitute delegated legislation and can satisfy Vishaka’s requirements.

Respondent No. 1: Contended that the Vishaka guidelines were binding law until the POSH Act came into force on 09.12.2013, and that any enquiry into sexual harassment must be conducted by a duly constituted Complaints Committee. The failure to constitute such a committee rendered the entire enquiry illegal, regardless of procedural fairness. Relied on Arati Durgaram Gavandi v. Tata Metaliks Ltd. and the binding nature of Vishaka under Article 141.

Relief Sought

The petitioner seeks quashing of the Industrial Tribunal’s Part I Award dated 09.12.2025, restoration of the termination order dated 07.12.2012, and dismissal of the industrial dispute. Alternatively, the matter should be remanded for fresh adjudication on merits.

The Legal Issue

Can a domestic enquiry into sexual harassment be invalidated solely on the ground that a formal Complaints Committee under the Vishaka guidelines was not constituted, even if the procedure followed satisfied the principles of natural justice under the certified Model Standing Orders?

Arguments Presented

For the Petitioner

The petitioner argued that the Model Standing Orders, once certified under the Industrial Employment (Standing Orders) Act, acquire statutory force as delegated legislation. The enquiry was conducted in accordance with these rules, with full opportunity to the workman to defend himself. The Vishaka guidelines were always intended as a temporary measure until suitable legislation was enacted. The Bombay High Court in Arati Durgaram Gavandi was distinguishable as it dealt with post-POSH Act compliance. The Tribunal erred in focusing on form over substance. The Supreme Court in Aureliano Fernandes held that fairness, not rigid structure, is the core requirement. The absence of a Complaints Committee does not automatically vitiate an enquiry if the process was fair.

For the Respondent

Respondent No. 1 contended that the Vishaka guidelines were binding law under Article 141 from 1997 until 09.12.2013, and that all employers, including those governed by Standing Orders, were obligated to constitute a Complaints Committee. The Supreme Court in Medha Kotwal Lele explicitly directed amendments to Standing Orders to include such committees. The Tribunal correctly applied binding precedent. The petitioner’s argument that procedural fairness alone suffices undermines the protective intent of Vishaka. The failure to constitute a Committee was a fundamental breach of the law applicable at the time of the incident.

The Court's Analysis

The Court undertook a comprehensive analysis of the evolution of sexual harassment law in India, tracing the trajectory from Vishaka to the POSH Act. It held that while the Vishaka guidelines were binding until 09.12.2013, their purpose was to ensure fairness and dignity, not to impose rigid procedural forms. The Court emphasized that the term "suitable legislation" in Vishaka referred to comprehensive statutory frameworks, not merely amendments to Standing Orders.

"The purpose of the Vishaka guidelines was to ensure fairness, sensitivity, and protection against arbitrary action. If that purpose is substantially achieved then the enquiry cannot be set aside only on naming or structural differences."

The Court rejected the notion that the absence of a Complaints Committee automatically renders an enquiry illegal. It held that the Tribunal failed to examine whether the workman was given a fair opportunity to defend himself - whether he received the complaint, had access to evidence, was allowed representation, and could cross-examine witnesses. The Court noted that the Enquiry Officer’s report was based on recorded evidence, and the workman had participated fully.

The Court distinguished between the legal regime applicable before and after the POSH Act. While the Act now mandates Internal Complaints Committees, its provisions cannot be applied retrospectively. For incidents occurring before 09.12.2013, the applicable law was the Vishaka framework, which permitted compliance through existing statutory mechanisms like certified Standing Orders - provided the process was fair.

The Tribunal’s conclusion that the enquiry was "perverse" was found to be legally unsustainable because it was not supported by an analysis of the evidence or a determination of prejudice. Perversity requires that the conclusion be so unreasonable that no reasonable person could have reached it - a threshold not met by mere procedural deviation.

The Court further held that the Tribunal’s reliance on Arati Durgaram Gavandi was misplaced, as that case dealt with post-POSH Act obligations. The binding nature of Vishaka does not override the statutory force of certified Standing Orders; rather, the two must be harmonized.

The Verdict

The writ petition succeeds. The Part I Award dated 09.12.2025 of the Industrial Court, Nashik, to the extent it holds the domestic enquiry illegal, unfair, and vitiated, and that the findings of the Enquiry Officer are perverse, is quashed and set aside. The matter is remanded to the Industrial Tribunal for fresh consideration. The Tribunal shall examine whether the enquiry complied with principles of natural justice, whether any real prejudice was caused to the workman, and whether the findings of the Enquiry Officer are supported by evidence. The Tribunal shall decide the issue afresh, without being influenced by its earlier observations, and dispose of the reference expeditiously, preferably within six months from the date of receipt of this order. All contentions on merits are kept open. No order as to costs.

What This Means For Similar Cases

Fair Process Trumps Formal Compliance

• Employers conducting domestic enquiries for sexual harassment allegations prior to 09.12.2013 need not constitute a formal Complaints Committee if the enquiry under certified Standing Orders ensures full opportunity to be heard.
• Legal validity hinges on whether the accused was given notice, access to evidence, representation, and a chance to rebut - not on the label of the inquiry body.
• Practitioners must focus on documenting procedural fairness in enquiry records, not merely on committee formation.

Standing Orders Retain Legal Force as Delegated Legislation

• Certified Model Standing Orders under the Industrial Employment (Standing Orders) Act are not mere contractual terms; they carry statutory force and can satisfy Vishaka’s requirements if they provide a fair mechanism.
• Amendments to Standing Orders incorporating sexual harassment as misconduct are valid forms of delegated legislation and remain operative for pre-POSH Act incidents.
• Employers should ensure Standing Orders are updated to reflect Vishaka principles, but failure to do so does not automatically invalidate an enquiry conducted fairly.

Tribunal Must Analyse Evidence, Not Rely on Presumptions

• Industrial Tribunals cannot set aside findings of Enquiry Officers merely because the inquiry body lacked a specific name or structure.
• A finding of "perversity" requires a detailed analysis of the evidence - whether material was ignored, irrelevant facts relied upon, or conclusions unsupported.
• Practitioners must ensure that awards contain specific reasoning on fairness, prejudice, and evidentiary sufficiency - not boilerplate references to Vishaka.