POSH inquiries: Orissa High Court upholds fresh probe after respondent was denied witness statements and cross-examination հնարավորություն

The aggrieved woman, a female protagonist in a television show, complained that the respondent—an employee of Zee Entertainment’s Bhubaneswar office—had sexually harassed her.

After the Presiding Officer of the Bhubaneswar ICC went on maternity leave, the company’s Mumbai-based ICC conducted the inquiry by video conference.

It found the allegations proved and recommended the respondent’s termination; the employer terminated his service.

On appeal under Section 18(1) of the PoSH Act, the Labour Court set aside the findings and termination and remitted the matter for a fresh inquiry, citing, among other things, the denial of cross-examination, non-supply of statements and materials, and failure to examine all witnesses named by the respondent.

The employer challenged the appellate order by writ petition.

1. Whether the company could properly have the Mumbai-based ICC conduct the inquiry concerning its Bhubaneswar workplace, rather than involving the local ICC members.

2. Whether the ICC’s inquiry complied with the requirements of natural justice, including by providing the respondent with relevant statements and materials and an effective opportunity to test evidence against him.

Section 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) requires an Internal Committee at each office or administrative unit of a workplace.

Section 11 requires an inquiry consistent with applicable service rules and the principles of natural justice; where both parties are employees, they must have an opportunity to be heard, and the findings must be made available to them for representation.

Rule 7(4) of the PoSH Rules, 2013 likewise requires the inquiry to follow natural justice, while Section 13(1) requires the findings to be made available to the concerned parties.

In Aureliano Fernandes v. State of Goa, (2024) 1 SCC 632, the Supreme Court affirmed that a person accused of misconduct must be informed of the case, supplied the supporting evidence, and given a reasonable opportunity to present a defence; procedural fairness must be assessed pragmatically.

The Court also considered authorities addressing cross-examination in PoSH inquiries, including Institute of Hotel Management, Catering Technology and Applied Nutrition v. Suddhasil Dey and Thomas Antony v. State of Kerala.

The Court considered the employer’s explanation that the Bhubaneswar Presiding Officer was on maternity leave a justification for transferring the inquiry to Mumbai, but held it insufficient to explain why local ICC members were not included; the involvement of local members was particularly relevant given the language used in the statements.

More significantly, the respondent received only the gist—not copies—of the aggrieved woman’s and her witnesses’ depositions and was denied an opportunity to cross-examine them.

The Court held that, in the circumstances, the denial of cross-examination and supporting materials impaired the respondent’s ability to challenge the evidence and amounted to a failure to provide a fair hearing under the PoSH Act, Rules, and natural justice.

It therefore found no basis to interfere with the Appellate Authority’s remand.

It held that the respondent had been deprived of a fair opportunity to meet the evidence against him, and that the appellate order disclosed no infirmity warranting interference.