The Kerala High Court has set aside a POSH inquiry report where the respondents were neither served a copy of the complaint nor given an opportunity to cross-examine witnesses — confirming that Rule 7 of the POSH Rules is mandatory and procedural fairness cannot be compromised.

Background

In X v. Kerala Social Security Mission (WP(C) No. 31952 of 2025, decided March 17, 2026; 2026:KER:23655), the Kerala High Court set aside an IC report on the ground that the inquiry was conducted in violation of mandatory procedural safeguards under the POSH Act and Rules. The petitioners challenged adverse IC findings that had led to one petitioner’s termination. Their core grievance was that they were neither furnished a copy of the complaint nor given an effective opportunity to defend themselves — the complaint was accessed only subsequently through an RTI request.

Statutory Framework: Section 11 and Rule 7

Rule 7(2) of the POSH Rules mandates that a copy of the complaint be sent to the respondent upon receipt. Rule 7(3) requires the respondent to be given an opportunity to file a reply within ten working days. Rule 7(4) mandates that the inquiry be conducted in accordance with principles of natural justice, providing reasonable opportunity to present their case. The Court emphasised that in cases involving public employment, the inquiry must additionally comply with applicable service rules.

Core Procedural Lapses

On facts, the Court found that the respondents had merely been shown portions of the complaint during the hearing, rather than formally served a copy as required. The Court held categorically that this was a violation of Rule 7 and the principles of natural justice. It further found that the petitioners were not afforded an opportunity to cross-examine the complainant or witnesses and were not provided clarity on the evidentiary material relied upon. These were treated as substantive denials of the right to defence, going to the root of the inquiry process. Relying on Aureliano Fernandes v. State of Goa, the Court reiterated that even within the complainant-centric POSH framework, the accused must be informed of the case, supplied the evidence, and given a reasonable opportunity to present their version.

Outcome

The IC report was set aside in its entirety and the inquiry directed to be conducted afresh within two months. The Court clarified that it had not examined the merits of the allegations. It also confirmed that writ jurisdiction is available for patent procedural violations, notwithstanding the Section 18 appellate remedy.

Key Takeaways

• Serving a copy of the complaint on the respondent under Rule 7(2) is mandatory — merely showing portions of it during a hearing does not comply with this requirement.
• Denial of cross-examination of the complainant and witnesses constitutes a substantive violation of natural justice that vitiates the entire POSH inquiry.
• IC reports passed without compliance with Rule 7 will not survive judicial scrutiny and the matter will be remanded for a fresh inquiry from the outset.
• Writ jurisdiction can be invoked directly for POSH inquiry procedural violations, notwithstanding the availability of the Section 18 appellate remedy, where there is patent non-compliance with natural justice.
• Employers and ICs must ensure that respondents receive all complaint documents within the prescribed timelines and are given a full and fair opportunity to cross-examine all witnesses before any adverse recommendation is made.