Section 13(2) POSH Act ‘Recommendation’ by ICC makes Section 18 appeal maintainable | Bombay HC

The Bombay High Court clarified that an Internal Complaints Committee’s communication rejecting a complaint as not involving sexual harassment constitutes a “recommendation” under Section 13(2) of the POSH Act, thereby rendering a Section 18 appeal maintainable and setting aside the Industrial Court’s order while remanding the matter for fresh consideration.

Background & Facts

The Dispute

The petitioners - Mr. Anup Vikal, Ms. Chandrani Sen and Mr. Rohit Anand - were employees (or former employees) of Maple Infra InvIT Investment Manager Private Limited (Maple Infra). Ms. Sen resigned on 12 October 2023 after 73 days of service. On 28 October 2023 she lodged a complaint before the Internal Complaints Committee (ICC) alleging wrongful termination, gender bias, discrimination and retaliation. The ICC, after internal deliberations, concluded on 30 October 2023 that the allegations did not contain a sexual element and therefore fell outside its jurisdiction. The ICC’s email, dated 30 October 2023, was forwarded to the employer.

Key Facts

• 01 August 2023 - Ms. Sen commenced employment with Maple Infra as General Counsel (Vice-President-Legal).
• 12 October 2023 - Ms. Sen voluntarily tendered her resignation.
• 28 October 2023, 6:22 pm - Ms. Sen sent an email to the ICC branding her grievance as a POSH complaint.
• 30 October 2023, 9:16 pm - The ICC’s external member, Ms. Rewati Bhagwat, acknowledged receipt of the complaint and forwarded it for consideration.
• 30 October 2023, 9:39 pm - Ms. Bhagwat emailed the ICC’s decision that the complaint lacked a sexual element and was outside ICC jurisdiction.
• 30 October 2023, 10:19 pm - Maple Infra terminated Ms. Sen’s employment and communicated final dues.
• 03 November 2023 - Ms. Sen complained to the ICC about the hasty dismissal of her complaint.
• 08 November 2023 - The Board of Maple Infra informed Ms. Sen that her employment had terminated on 26 October 2023.
• 14 November 2023 - Ms. Sen acknowledged receipt of full and final settlement of Rs 11,99,466 plus Rs 90,739.
• 16 November 2023 - The external ICC member reiterated the decision not to entertain the complaint.
• 03 December 2023 - Ms. Sen alleged that a statement by Mr. Vikal had a sexual tone.
• 08 December 2023 - The external ICC member again reiterated its decision.
• 20 January 2025 - The Industrial Court dismissed applications questioning the maintainability of the appeal.
• 20 April 2026 - Petitioners filed a pursis seeking priority decision on maintainability.
• 22 April 2026 - Respondent No. 2 filed Writ Petition 5610/2026 challenging the Industrial Court’s approach.
• 04 May 2026 - The Industrial Court allowed the appeal, set aside the ICC email and remanded the matter to the ICC for fresh inquiry.
• 19 August 2026 - The Bombay High Court delivered the present judgment.

Procedural History

• 12 June 2019: Original writ petitions (WP-7430/2026, WP-7434/2026, WP-8418/2026) filed before the High Court of Bombay.
• 20 January 2025: Industrial Court (Mumbai) dismissed maintainability applications.
• 04 May 2026: Industrial Court allowed the appeal, set aside ICC communication and remanded for fresh inquiry.
• 19 August 2026: High Court (Coram: Sandeep V. Marne, J.) heard the petitions and delivered the present judgment.

Parties' Positions

• Petitioners (employees) argued that the ICC’s email was not a “recommendation” within the meaning of Section 13(2) because no inquiry under Section 11 had been conducted; therefore the appeal under Section 18 was not maintainable.
• Respondent No. 2 (the ICC) contended that any decision, even without a formal inquiry, amounts to a recommendation under Section 13(2) and is appealable under Section 18.
• State of Maharashtra (employer) supported the ICC’s view, emphasizing statutory duty to conduct an inquiry and the remedial purpose of the POSH Act.

Relief Sought

The petitioners sought (i) a declaration that the ICC’s communication is not a recommendation and the appeal is non-maintainable, (ii) setting aside the Industrial Court’s order, and (iii) costs. The respondents sought affirmation that the appeal is maintainable and that the ICC’s decision is a recommendation.

The Legal Issue

Whether a communication by the Internal Complaints Committee stating that a complaint does not involve a sexual element, issued without a formal inquiry under Section 11 of the POSH Act, qualifies as a “recommendation” within the meaning of Section 13(2) and therefore attracts the remedial right of appeal under Section 18 of the POSH Act.

Arguments Presented

For the Petitioners

• The petitioners relied on the plain language of Section 11, which obliges the ICC to shall conduct an inquiry before any recommendation can be made; without such inquiry, no recommendation can arise.
• They cited Hareesh M.S. v. Kerala State Financial Enterprises Ltd. and Dr Prasad Pannian v. Central University of Kerala to argue that the ICC’s jurisdiction is triggered only by a complaint that falls within the definition of sexual harassment under Section 2(n).
• They contended that allowing an appeal on a threshold rejection would defeat the purpose of the statutory scheme and create a loophole for employers to evade inquiry.

For the Respondent

• The respondents relied on the purposive approach to remedial statutes, invoking Dr Sohail Malik v. Union of India and Vijay Thakkar v. Aditya Birla Capital to argue that the word “recommendation” must be given a liberal construction to protect the aggrieved woman.
• They argued that the ICC’s decision, even if made without a formal inquiry, still directs the employer’s action and therefore falls within the ambit of Section 13(2).
• They cited Sharanjeet Kaur v. IDBI Bank Ltd. to support the view that a decision refusing to entertain a complaint is appealable under Section 18.

The Court's Analysis

The Court began by examining the statutory scheme of the POSH Act. It noted that Section 13 deals with the inquiry report and the recommendations that follow its completion. Section 11, however, imposes a mandatory duty on the ICC to shall conduct an inquiry where a complaint falls within the definition of sexual harassment. The Court held that the mandatory verb “shall” precludes the ICC from bypassing the inquiry.

"The word used under Section 11(1) is ‘shall’. Section 11(1) of the POSH Act provides that the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint…"

The Court then turned to the interpretation of “recommendation” in Section 13(2). It rejected a narrow reading that would limit the term to post-inquiry findings only. Citing Poonam Vijay Thakkar v. Aditya Birla Capital and the Apex Court’s pronouncement in Dr Sohail Malik, the Court emphasized that the POSH Act is a social-welfare legislation and must be construed liberally in favour of the aggrieved woman.

"Provisions of the POSH Act must not only be interpreted liberally but in the event of any difficulty, the same must be interpreted in favour of the class of persons for whose benefit the statute is enacted."

The Court observed that the ICC’s email of 30 October 2023, although issued without a formal inquiry, nonetheless directed the employer to take no action. Such a direction is functionally equivalent to a recommendation because the employer would act on it. The Court rejected the petitioners’ argument that the absence of an inquiry vitiates the recommendation, holding that the statutory purpose would be frustrated if the ICC could evade appellate scrutiny by simply labeling a decision as a “threshold rejection”.

The Court also addressed the procedural irregularities of the Industrial Court. While the Industrial Court was empowered only to decide the maintainability of the appeal, it proceeded to adjudicate the merits, thereby overstepping its jurisdiction. The High Court therefore set aside the Industrial Court’s order in part and remanded the appeal for fresh determination on its merits.

In sum, the Court concluded that:

1. The ICC’s communication dated 30 October 2023 is a “recommendation” within the meaning of Section 13(2).
2. An appeal under Section 18 is therefore maintainable.
3. The Industrial Court erred in deciding the merits of the appeal and its order is set aside in part.
4. The appeal is remanded to the Industrial Court for a full hearing, with a directive to decide expeditiously within four months.

The Verdict

The Bombay High Court allowed the appeal, holding that the ICC’s email rejecting the complaint is a “recommendation” under Section 13(2) of the POSH Act. Consequently, the appeal under Section 18 is maintainable. The Court set aside the Industrial Court’s order dated 4 May 2026 in part, remanded the appeal to the Industrial Court for fresh adjudication on its merits, and directed that the Industrial Court decide the matter within four months. No costs were awarded.

What This Means For Similar Cases

ICC Decisions Without Inquiry Are Appealable

• Any ICC decision that directs the employer to take or not take action, even if made without a formal inquiry, will be treated as a “recommendation” under Section 13(2).
• Parties should promptly file a Section 18 appeal within ninety days of such a communication.

Maintainability Focus Over Merits

• Tribunals must confine themselves to the maintainability issue when invoked; they cannot decide the merits of the appeal without expressly framing that issue.
• Failure to do so may result in the order being set aside and the matter remanded.

Procedural Discipline for Tribunals

• Tribunals should record reasons for any finding on maintainability; absence of reasons does not automatically invalidate the order but may invite scrutiny.
• Parties should ensure that all applications (maintainability and dismissal) are addressed together to avoid piecemeal litigation.

Actionable Takeaways

• Draft Section 18 appeals referencing the ICC’s communication as a recommendation.
• Verify that the ICC has complied with the mandatory inquiry under Section 11 before arguing non-maintainability.
• When appearing before an appellate tribunal, limit arguments to the maintainability question unless the tribunal expressly expands its jurisdiction.