The Prevention of Sexual Harassment (PoSH) Act, 2013 empowers Internal Committees (ICs) not only to investigate complaints of workplace sexual harassment but also to take interim measures to ensure fairness, safety, and non-interference during inquiry proceedings. A recent judgment by the Kerala High Court reinforces this power, emphasising that courts will not ordinarily interfere with transfer orders made in the public interest or to preserve the integrity of ongoing investigations.
This case offers a valuable precedent for IC members and employers on how to exercise their authority responsibly and in accordance with the law.
Background of the Case
The petitioner was employed as a Driver – Grade 1 at the Electrical Division, Cherthala, under the Kerala State Electricity Board (KSEB) since 2003. He filed a petition before the High Court challenging his transfer order issued by the Board.
The respondent, i.e., the Electricity Board, justified the transfer by citing a complaint filed by the petitioner’s controlling officer, a senior female employee. She alleged that the petitioner’s conduct was irresponsible and harassing, not only toward her but also toward other female staff members.
The complaint was pending before the Internal Committee (IC) constituted under the PoSH Act, and the transfer was issued as an interim measure under Section 12 of the Act, which allows the IC to recommend temporary action to protect the aggrieved woman or to ensure the inquiry remains fair and unbiased.
Arguments Before the Court
The petitioner challenged the transfer on the grounds that it was arbitrary and unjustified, suggesting that the order was punitive in nature. He sought to have the transfer quashed.
In contrast, the respondent Board argued that the transfer was administratively justified and necessary to prevent interference with the ongoing PoSH inquiry. The Chief Engineer, after reviewing the complaint and related documents, concluded that moving the petitioner to another office, within the same district, would enable the Internal Committee to conduct a fair and uninfluenced inquiry.
This transfer, the Board maintained, was made “in the best interest of the organisation” and aligned with Section 12(1)(a) of the PoSH Act.
Reference to Supreme Court Precedent
The Kerala High Court referred to the Supreme Court’s ruling in Shilpi Bose & Others v. State of Bihar & Others [(1991) Supp 2 SCC 659], which established a crucial principle:
“Courts should not interfere with a transfer order which is made in the public interest and for administrative reasons, unless the transfer orders are made in violation of law or are mala fide in nature.”
By invoking this precedent, the High Court reaffirmed that transfer is an incident of service, and judicial interference is warranted only when the order is malicious, illegal, or contrary to statutory provisions.
The Court’s Observations
The Kerala High Court held that the Internal Committee’s authority under Section 12 is a critical mechanism to safeguard both the aggrieved woman’s well-being and the integrity of the inquiry. The judges noted that allowing the petitioner to continue working in the same environment as the complainant and other female staff could result in animosity, undue influence, or interference with witnesses.
The Court further stated:
“It is a settled position of law that transfer of employment is an incident of service, and courts do not generally interfere with such orders unless they are made in violation of law or are mala fide in nature.”
Recognising that workplace harassment complaints are sensitive, the Court emphasised that interim actions like transfers are necessary to maintain neutrality and protect all parties involved. The decision to move the petitioner to another nearby office was deemed appropriate, legal, and proportional.
Section 12 of the PoSH Act: Power of the IC During Inquiry
The judgment also reproduced the text of Section 12 of the PoSH Act, which outlines the powers of the IC during the pendency of an inquiry:
Section 12 — Action During the Pendency of Inquiry:
(1) During the pendency of an inquiry, on a written request made by the aggrieved woman, the Internal Committee or the Local Committee, as the case may be, may recommend to the employer to:
(a) Transfer the aggrieved woman or the respondent to any other workplace; or
(b) Grant leave to the aggrieved woman up to a period of three months; or
(c) Grant such other relief to the aggrieved woman as may be prescribed.
By reaffirming the IC’s power under Section 12(1)(a), the Court underscored that transfers are legitimate protective measures, not punitive actions. These are meant to facilitate a fair process and prevent intimidation or retaliation.
Key Takeaways for Internal Committees
Exercise Section 12 Powers with Diligence:
The Internal Committee has the authority to recommend interim measures such as transfers during the pendency of an inquiry. However, these should be based on clear reasoning and documentation, not assumptions or bias.
Document the Rationale:
Every interim recommendation must include a well-documented justification, stating why such a step is necessary to ensure a fair inquiry. Written records strengthen the credibility and defensibility of IC decisions if challenged in court.
Ensure Fairness for Both Parties:
While protecting the aggrieved woman, the IC must ensure that its recommendations are proportionate and do not unfairly stigmatise the respondent. Transparency in communication and documentation can help maintain procedural fairness.
Employer’s Role in Implementation:
Once an IC recommends interim relief, it is the employer’s responsibility to act on the recommendation promptly. Failure to do so may be seen as non-compliance with the PoSH Act.
Training IC Members:
This case reinforces the need for continuous training and legal awareness among IC members so that they understand the scope and boundaries of their powers under the law.
Broader Implications
This judgment reiterates the judiciary’s consistent position that PoSH compliance is both a legal and ethical responsibility. By upholding interim transfer orders, courts have reinforced that the protection of complainants and the integrity of inquiry proceedings outweigh individual inconveniences that may arise from administrative transfers.
Moreover, it sends a clear message to organisations: PoSH inquiries must be insulated from influence, intimidation, or bias. Internal Committees, therefore, play a decisive role not only in resolving complaints but also in setting the tone for a culture of accountability and respect.
Glossary
- Petitioner: A person who presents a petition to a court or authority in respect of a particular cause.
- Respondent: The person who must defend a case or complaint filed against them before a court or authority.
In conclusion, the Kerala High Court’s judgment underscores the judiciary’s support for the autonomy and authority of Internal Committees under the PoSH Act. It serves as a reminder that ICs must act with clarity, diligence, and fairness, and that when they do, the law will stand firmly behind their decisions.