The Bombay High Court has delivered an important ruling on the architecture of appellate remedies under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, holding that an employer cannot constitute an appellate authority of its own choice to reconsider the findings of an Internal Committee. A Division Bench comprising Justice G. S. Kulkarni and Justice Dr. Neela Gokhale held that Section 18 of the POSH Act, read with Rule 11 of the Sexual Harassment of Women at Workplace Rules, 2013, does not confer any jurisdiction upon an employer to create or constitute an internal appellate mechanism and thereafter treat that body as the statutory Appellate Authority contemplated by Parliament. The Court accordingly quashed the proceedings and consequential penalty imposed upon the petitioner, holding that the entire exercise rested upon a jurisdictional illegality.
The judgment in Ashok Upadhyay v. Union Bank of India, Writ Petition No. 2385 of 2024, is significant because the Court was not merely examining whether the disciplinary penalty imposed upon an employee was excessive or whether the Internal Complaints Committee had correctly appreciated the evidence. The more fundamental question was whether the very body which reconsidered the original POSH proceedings possessed lawful jurisdiction to do so. The Court’s answer was emphatically in the negative. The decision consequently reinforces a basic principle of administrative law: where legislation creates a particular statutory mechanism for adjudication or appeal, an institution cannot substitute its own preferred mechanism merely because it considers such a course administratively convenient.
The litigation arose in an unusual procedural manner. The petitioner had initially faced proceedings before the Internal Complaints Committee of Union Bank of India in relation to allegations under the POSH framework. The Internal Committee ultimately exonerated him. The complainant thereafter preferred an appeal before what was described as an Appellate Authority. According to the petitioner, this authority directed that the matter be reinvestigated without giving him proper notice or an effective opportunity of hearing. The matter was thereafter placed before a second committee, which reached a finding adverse to the petitioner. A penalty was subsequently imposed, leading him to approach the Bombay High Court.
The controversy before the High Court therefore went beyond the merits of the allegations. The petitioner questioned the legality of the appellate mechanism itself, contending that the body which had entertained the appeal was not a statutory Appellate Authority under the POSH Act. If that contention was correct, the subsequent reinvestigation, finding of guilt and penalty would all stand on an unstable legal foundation because the jurisdiction exercised at the appellate stage was itself unauthorised.
The Bench began its analysis with Section 18 of the POSH Act, which provides a statutory right of appeal to a person aggrieved by the recommendations of the Internal Committee or Local Committee, or by the non-implementation of those recommendations. The provision contemplates an appeal to the court or tribunal in accordance with the applicable service rules and, where no such service rules exist, in accordance with the manner prescribed by the Rules. The legislative structure is therefore important: the right of appeal is not simply an internal employment grievance mechanism. It is a statutory remedy whose forum and manner are controlled by the legislative framework.
Rule 11 of the POSH Rules assumes significance in this context. The Rule provides for an appeal to the Appellate Authority notified under clause (a) of Section 2 of the Industrial Employment (Standing Orders) Act, 1946. The Bombay High Court read Section 18 and Rule 11 together and concluded that neither provision gives an employer an independent power to establish an appellate authority of its own choosing. The statutory scheme identifies the source from which appellate jurisdiction is to arise; it does not leave the employer free to create a parallel appellate structure whenever a complaint is carried beyond the Internal Committee.
The Court’s reasoning is particularly important from the standpoint of statutory interpretation. The Bench essentially refused to read into the legislation a power which Parliament had not granted. If the legislature intended every employer to constitute its own appellate authority, it could have expressly said so. Instead, Section 18 and Rule 11 establish a framework involving a court, tribunal or notified Appellate Authority. The Court therefore cautioned against interpreting the provisions in a manner that adds a power to the statute which the legislature consciously did not incorporate.
The distinction between an Internal Committee and an Appellate Authority is central to the judgment. The POSH Act deliberately creates an Internal Committee at the workplace because complaints of sexual harassment require a mechanism that is accessible, confidential and capable of examining workplace-specific facts. But the existence of an Internal Committee does not imply that the same employer possesses unlimited authority to create successive layers of adjudication. Once the statute provides an appellate remedy, the appellate forum derives its legitimacy from the statute or the rules made under it, not merely from the employer’s administrative decision.
This distinction protects the independence of the appellate process. If an employer could constitute its own appellate authority, the appellate mechanism could effectively remain under the control of the very institution whose workplace procedures are being challenged. Such a structure would raise obvious concerns about institutional independence, particularly in cases where the employer has a direct interest in the consequences of the Internal Committee’s findings. The statutory design of Section 18 prevents the appeal from becoming merely another level of internal management review.
The Court consequently examined whether Union Bank of India could identify any statutory provision authorising it to constitute the appellate body in question. It found that the Bank was unable to demonstrate any such source of power. The absence of jurisdiction was therefore not treated as a minor procedural irregularity but as a foundational defect. The appellate authority had no legal basis to exercise the power it assumed.
That distinction has substantial consequences in administrative law. A procedural defect can sometimes be cured, particularly where the authority otherwise possesses jurisdiction and the defect does not cause substantial prejudice. A jurisdictional defect stands differently. Where an authority has no legal power to decide a matter, its decision does not become valid merely because the proceedings were conducted carefully or because the outcome may appear substantively justified. Jurisdiction is the legal foundation upon which the entire decision-making process rests.
The Bench therefore described the appellate proceedings as resting upon a “patent illegality” and held that the resulting order was non-est. In legal terms, treating an order as non-est means that the decision is regarded as lacking legal existence because it was made by an authority that did not possess jurisdiction to make it. The Court’s approach demonstrates why jurisdictional questions must ordinarily be resolved before the merits of an administrative decision are considered. An otherwise elaborate inquiry cannot cure the absence of lawful authority at the threshold.
The Court was also critical of the consequences produced by the Bank’s interpretation. The initial Internal Committee had exonerated the petitioner. The complainant’s appeal was then entertained by an authority whose statutory status was not established. That authority directed reinvestigation, the petitioner was subjected to further proceedings and a second committee eventually found him guilty. Thus, a process that began with exoneration ultimately culminated in punishment because an appellate mechanism unsupported by statutory authority had intervened between the two stages.
The procedural implications are particularly serious because the petitioner alleged that the reinvestigation was ordered without notice and without providing him an adequate opportunity of hearing. Once the Court concluded that the appellate authority itself was inherently without jurisdiction, the subsequent procedural defects assumed even greater significance. The question was not merely whether the petitioner received a perfect hearing; it was whether he should have been subjected to that appellate process at all.
The principles of natural justice therefore operate as an additional layer of protection within the POSH framework. The right to be heard is particularly important where an Internal Committee has already reached a finding favourable to the employee and a subsequent proceeding seeks to reopen the matter and potentially expose him to disciplinary consequences. A decision to reinvestigate cannot be treated as an administrative formality if it has the potential to reverse an exoneration and result in punishment. The affected person must know the case being reopened and must have a meaningful opportunity to respond.
At the same time, the ruling should not be misunderstood as restricting the statutory right of a complainant to challenge an Internal Committee’s findings. The Court did not hold that a complainant cannot appeal an exoneration. Section 18 expressly recognises an appeal by a person aggrieved by the recommendations or their non-implementation. The problem was with who exercised the appellate jurisdiction, not with the existence of the right to appeal itself. This distinction is crucial because otherwise the judgment could incorrectly be read as protecting Internal Committee findings from external scrutiny.
Indeed, the decision strengthens rather than weakens the statutory appellate framework. The POSH Act was enacted to provide an institutional mechanism for dealing with workplace sexual harassment following the constitutional principles articulated in Vishaka v. State of Rajasthan. The statute does not contemplate that employers should create private appellate structures outside the statutory scheme. A legitimate appeal must be directed to the authority contemplated by the Act and Rules. The Bombay High Court’s judgment therefore preserves the complainant’s appellate right while ensuring that the right is exercised through a legally constituted forum.
The history of POSH appellate mechanisms in Maharashtra makes the issue particularly significant. There had previously been uncertainty concerning the availability of a notified appellate authority. In 2021, following proceedings before the Bombay High Court, the Maharashtra Government notified Industrial Courts as Appellate Authorities under the relevant statutory framework for specified industrial establishments. That development itself demonstrated the importance of having a legally identifiable appellate forum rather than leaving employees and complainants uncertain about where an appeal should be filed. The present judgment reinforces the same institutional principle from another direction: where the statute contemplates a notified appellate authority, the employer cannot fill the gap by creating one itself.
This history also demonstrates why appellate jurisdiction under the POSH Act cannot be treated as an ordinary internal employment grievance. In 2021, the absence of a properly notified appellate authority had itself created difficulties for persons seeking to challenge Internal Committee decisions. The State was required to clarify and notify the appropriate authorities. The legal system has therefore moved towards a model in which appellate jurisdiction is externally identifiable and traceable to statutory authority. Allowing individual employers to establish their own appellate bodies would undermine that effort by creating potentially inconsistent and institution-specific appellate structures.
The judgment is particularly relevant for public sector institutions such as banks. The Court expressly cautioned Union Bank of India and other public institutions to exercise greater care while interpreting statutory provisions. Public sector employers are not ordinary private actors when exercising powers governed by legislation. Their decisions are subject to constitutional standards of legality, fairness and non-arbitrariness. An internal administrative practice cannot override the statutory framework merely because the institution believes the practice is efficient or desirable.
The Court’s criticism that a misconceived interpretation could lead to a “chaotic situation” is therefore more than an observation directed at one bank. It carries an institutional warning. If every public employer were permitted to interpret Section 18 and Rule 11 differently, one organisation could constitute a senior-management appellate panel, another could appoint an external consultant, another could route appeals to its disciplinary authority and another could create an entirely separate committee. Such fragmentation would defeat the purpose of having a statutory appellate framework in the first place.
There is also a significant rule-of-law principle embedded in the judgment: institutional convenience cannot create jurisdiction. An employer may genuinely believe that its own senior officers are best equipped to review a POSH finding. That belief, however, cannot substitute for legislative authority. Jurisdiction must come from the Constitution, a statute, subordinate legislation or validly framed service rules. It cannot arise simply because an organisation considers itself competent to exercise the power.
The ruling also provides an important distinction between an employer’s disciplinary power and its appellate power under the POSH Act. An employer may, in appropriate circumstances, take disciplinary action based upon a valid Internal Committee recommendation in accordance with the applicable service rules. But that does not mean the employer can convert itself into an appellate tribunal and reconsider the Internal Committee’s conclusions through an internally created authority. The disciplinary authority’s role and the statutory appellate authority’s role must remain legally distinct.
This separation is particularly important because the POSH Act operates at the intersection of workplace discipline and statutory adjudication. An Internal Committee’s findings may have employment consequences, but the committee itself is not simply another managerial department. It performs functions assigned by statute. Similarly, an appeal against its recommendations is not merely a request to the employer’s management to reconsider an administrative decision. It is a statutory remedy requiring exercise of jurisdiction by the legally designated forum.
The judgment consequently carries implications for employers across sectors. Organisations should review their POSH policies, service rules and internal manuals to ensure that they do not inadvertently describe an internal senior-management committee as the statutory Appellate Authority under Section 18. Internal policies cannot enlarge the jurisdiction granted by Parliament. Where a statutory appeal is available, employees and complainants should be directed towards the legally designated forum rather than an employer-created appellate mechanism.
The decision is equally important for employees and respondents facing POSH proceedings. A person found guilty by an Internal Committee should examine whether the proposed appellate forum is actually the authority contemplated under Section 18 and Rule 11. Conversely, a complainant whose complaint has been rejected must be given meaningful access to the statutory appeal mechanism. The judgment thus protects both sides of the POSH process. Its emphasis is not on favouring the complainant or the respondent but on ensuring that the legal system prescribed for resolving such disputes is followed.
There is a larger constitutional dimension as well. Sexual harassment at the workplace implicates the rights to equality, dignity and a safe working environment. The POSH framework was developed precisely because internal workplace structures historically proved inadequate to address such complaints. The statutory framework therefore seeks to combine workplace accessibility with procedural safeguards. If employers were allowed to create their own appellate authorities without statutory sanction, the independence and credibility of that framework could be weakened.
The judgment also demonstrates the continuing relevance of Vishaka principles even after Parliament enacted the POSH Act. The statutory framework transformed constitutional guidelines into a detailed legislative mechanism, including complaint procedures, Internal Committees, inquiry requirements, employer obligations and appellate remedies. Once Parliament has occupied that field through legislation, institutions must operate within the statutory architecture rather than reverting to informal arrangements. The rule of law requires that the mechanism created to protect workplace dignity itself be administered through legally authorised procedures.
Importantly, the judgment should not be read as suggesting that every procedural irregularity in a POSH inquiry will automatically invalidate the proceedings. The Court’s decisive finding concerned the absence of jurisdiction in the appellate authority. That is materially different from a complaint that a committee made an evidentiary mistake or adopted a particular procedural approach. Courts ordinarily distinguish between errors within jurisdiction and actions undertaken without jurisdiction. The present case belongs to the latter category, which is why the consequences were so fundamental.
The ruling also reinforces the importance of legislative precision. Section 18 and Rule 11 establish a statutory pathway, but the operation of that pathway has historically required notifications by competent authorities. The experience in Maharashtra demonstrates that statutory rights are meaningful only when the institutional machinery necessary to exercise them actually exists. Where a State fails to notify the appropriate appellate forum, affected persons may be forced into constitutional litigation simply to identify where their statutory appeal lies. Effective implementation of the POSH Act therefore requires not only Internal Committees at workplaces but also functional and clearly identified appellate institutions.
The broader significance of Ashok Upadhyay v. Union Bank of India lies in its insistence that the POSH regime cannot be administered through ad hoc institutional arrangements. An Internal Committee may investigate; an employer may implement lawful recommendations; and an aggrieved person may invoke the statutory appellate remedy. But the employer cannot unilaterally create a body and confer upon it a jurisdiction which Parliament has not granted. By quashing the penalty that arose from such an inherently defective appellate process, the Bombay High Court has reaffirmed a foundational proposition of public law: fairness is not merely about reaching the correct outcome; it is equally about ensuring that the decision is made by the authority legally empowered to make it.
The judgment is therefore significant for both workplace justice and administrative law. It preserves the complainant’s statutory right to challenge an Internal Committee’s findings while simultaneously protecting respondents from being subjected to an appellate process created without legal authority. More importantly, it reminds public institutions that statutory compliance cannot be replaced by institutional convenience. The POSH Act was enacted to create a structured, credible and legally accountable mechanism for addressing workplace sexual harassment. That objective can only be served when every stage of the process from complaint and inquiry to appeal and implementation operates within the boundaries fixed by law. The Bombay High Court’s ruling thus sends a clear institutional message: an employer may administer the workplace, but it cannot legislate for itself, manufacture appellate jurisdiction, and then impose binding consequences through an authority that the law never recognised.
