Raising the Curtain on PoSH Inquiries- Part 1

The PoSH Act was never designed to make courts the primary fact-finders in workplace sexual harassment disputes. Instead, that role was entrusted to the  Internal Committees—while expecting courts to intervene only when confidence in the inquiry process itself begins to break down. Why is procedure so important that it can undo an entire inquiry?

In March 2024, the Kerala High Court took an unusual step. It set aside an Internal Committee’s report and ordered the employer to initiate a fresh inquiry. For one seemingly simple, yet crucial error: The respondent had never received a copy of the complaint against him.

At first glance, this may seem like a technical lapse. It doesn’t seem sufficient enough reason for an entire inquiry proceeding to be set aside. The Courts would disagree with you. They treated this omission as a defect significant enough to invalidate the entire process. The judgment raises an important question. Why can a procedural error sometimes matter more than the findings themselves?

To Understand That, We First Need To Understand The Court’s Role in PoSH Cases

Internal Committees—not courts—are entrusted with primary fact-finding. When analysing a workplace sexual harassment complaint, an Internal Committee is often better placed than a reviewing court because it understands the realities of that workplace.

As a result, while courts have the power to set aside findings, they generally do not approach a case as a “second Internal Committee”, tasked with conducting the inquiry afresh.

Why The Law Gives Internal Committees’ This Responsibility

Workplace sexual harassment often occurs in private, with limited evidence and few, if any, witnesses. For this reason, the PoSH framework entrusts primary fact-finding to Internal Committees, which hear the parties directly and assess the circumstances of the workplace.

This is why PoSH inquiries do not follow the criminal standard of proof. If Internal Committees were required to apply the same evidentiary standards as a criminal court, many workplace complaints could never be effectively examined.

Instead, PoSH inquiries proceed on the principle of preponderance of probabilities. In simple terms, the Committee asks: Is it more likely than not that a particular version of events occurred?

The law therefore gives Internal Committees significant responsibility—and considerable discretion—in determining what happened.

This Trust Comes With An Important Condition

The discretion given to Internal Committees comes with an important condition: the inquiry process must be fair. Both parties must know the allegations against them, have an opportunity to be heard, and appear before an unbiased Committee the basic requirements of of natural justice

The law also requires that the decision making process follow the doctrine of proportionality. The response must match the problem.

As the Supreme Court humorously observed, in Coimbatore District Central Cooperative Bank v. Employees Association (2007): “We will not allow the administration to use a sledgehammer to crack a nut where a paring knife would suffice”.

Courts are usually less concerned with whether the Committee reached the “right” conclusion. They are checking whether the process used to reach that conclusion can be trusted.

When Courts Usually Step In

Courts generally intervene where:

• The Internal Committee was not properly constituted.
• There are serious concerns about bias or impartiality.
• A party was denied a fair opportunity to participate in the inquiry and present their side
• The inquiry suffered from significant procedural irregularities.

The Real Boundary Of Judicial Intervention

If the inquiry is fair, independent, and properly conducted, courts are usually reluctant to interfere. In practice, the best protection against judicial intervention is a strong and reliable inquiry process.

If you’re an employer reading this and wondering whether your Internal Committee’s findings could be challenged in court, focus on the following:

• Is your Internal Committee properly constituted?
• Was the inquiry conducted fairly and without bias?
• Did both parties get a genuine opportunity to present their side?
• Is the process well-documented and consistent with the law?

If the answer to these questions is “yes,” then great, you’re in a much stronger position. If the answer is “it depends,”our inbox is always open 🙂

How SHLC Can Help

SHLC helps organisations strengthen PoSH compliance through policy development, IC training, inquiry support, and unbiased workplace investigations. Our focus is on helping organisations conduct fair, legally compliant, and defensible PoSH inquiries.

To learn more, contact us at contact@shlc.in or +91 96253 92040.

Disclaimer: This article is intended for general informational purposes only and does not constitute legal advice. Specific situations may require independent legal assessment and professional guidance.