Mumbai: The Bombay High Court has ruled that writ petitions challenging the findings or procedure of Internal Complaints Committees (ICCs) set up by private employers, such as Akasa Air, under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) are not maintainable.
ICCs Don’t Fall Under Writ Jurisdiction
Justice NJ Jamadar said ICCs and private employers do not fall within the meaning of “State” or “instrumentality of the State” under Article 12 of the Constitution and cannot be subjected to writ jurisdiction unless they perform a public duty. Any challenge to an ICC’s findings, the court clarified, should be made before the Appellate Authority under Section 18 of the POSH Act, not through a writ petition.
Court Cites Constitutional and Judicial Precedent
“By a catena of decisions, it is firmly crystallized that a writ will lie against the State or the instrumentality of the State, and a private entity only when such private entity performs a public function or discharges a public duty involving a public law element,” the court said.
Case Involving Akasa Air Captain
The order came on a plea by a captain with Akasa Air who was accused by a trainee pilot of making inappropriate remarks and creating discomfort during training. After a detailed inquiry, the ICC submitted its report on February 12, 2025, recommending a final warning, a six-month bar on upgrades, completion of a POSH refresher course, and suspension of some travel privileges.
Pilot Alleged Procedural Violations
The pilot challenged the report, claiming denial of cross-examination, lack of oral hearing, and breach of confidentiality. He said the inquiry was “marred by severe procedural violations”.
Distinction Between Refusal to Inquire and Improper Inquiry
Justice Jamadar referred to the Karnataka High Court’s ruling in Ms. X v. ICC, Ola Cabs (2024), which held that an employer’s refusal to conduct an inquiry could attract writ jurisdiction. However, he clarified that this did not mean all ICC proceedings are open to writ review.
“A distinction is required to be drawn between cases where the ICC refuses to discharge its statutory duty to inquire into a complaint of sexual harassment, and cases where the ICC allegedly conducts the inquiry not in conformity with the Act or rules,” the court said.
Cross-Examination Not Always Essential
The judge added that cross-examination is part of “fair play in action” only when credibility is in doubt. “Where there is no lis regarding facts, or when the basic facts are admitted, the absence of a formal opportunity of cross-examination per se does not vitiate the decision,” he observed.
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Writ Dismissed, Appeal Permitted
Finding no public duty involved, the court dismissed the writ petition but allowed the petitioner to appeal before the Appellate Authority within four weeks.
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