BACKGROUND OF THE CASE

In a significant judgement, the Hon’ble High Court of Delhi quashed the termination of a woman employed on probation at the Akademi (hereinafter referred as the “Respondent” or “Akademi”) and affirmed the jurisdiction of the Local Complaints Committee (“LCC”) u/s 6 of the Prevention of Sexual Harassment of Women at Workplace Act, 2013 (“the Act”) to inquire into her allegations of sexual harassment against the Secretary. The Court’s decision emphasises upon the critical importance of workplace dignity for women and the responsibility of institutions in addressing sexual harassment allegations¹.

The present matter concerns two connected Civil Writ Petitions instituted before the Hon’ble Delhi High Court, both emanating from a complaint of sexual harassment and the subsequent termination of the Petitioner. In writ petition bearing number W.P. (C) 1103 of 2020, the Petitioner sought a writ of mandamus seeking the compliance of the interim order passed by LCC and assailing the alleged illegal termination of the Petitioner effected by the Respondent. Simultaneously, writ petition bearing number W.P. (C) 2546 of 2021 has been preferred by the Respondent, invoking a writ of certiorari, challenging the jurisdiction assumed by the LCC.

FACTS OF THE CASE

• On15.02.2018,the Petitioner was appointed as Editor (English) on probation by the Respondent. The Petitioner alleged continuous sexual harassment by the Secretary who was employed by the Respondent, including unwelcome physical contact, sexually explicit remarks, threats, and sexual assault. The Petitioner filed a complaint before the LCC u/s 6 of the Act.

• The LCC vide order dated 16.01.2020 found a prima facie case in favour of the Petitioner and granted an interim relief, directing the Respondent to grant the Petitioner three months’ paid leave. The Petitioner then filed a Writ Petition before the Ld. Single Judge of the Delhi High Court, challenging the Respondent’s non-compliance with the LCC’s interim directions. The Hon’ble High Court stayed the inquiry pending before the LCC and directed the Respondent to pay the Petitioner her emoluments until the final disposal of the suit.

• While the Writ Petition was pending, the Respondent issued an Office Memorandum (“OM”) terminating the Petitioner’s employment on the ground of ‘unsatisfactory performance’ and ceased her emoluments payments, claiming this discharge was a routine outcome of non-confirmation at the end of probation.

• The Petitioner, through an application amended the petition requesting before the court to challenge the illegal termination of her services. In parallel, the Respondent filed a separate Writ Petition before the High Court to contest the LCC’s jurisdiction to entertain allegations against the Secretary, thus raising questions about the interpretation of the term “employer” under the POSH Act and the proper forum for adjudicating complaints of workplace sexual harassment.

PROCEDURAL ROUNDS OF LITIGATION

The Hon’ble High Court of Delhi, vide judgement dated 25.10.2021, held that the LCC was the competent authority to inquire into the Petitioner’s sexual harassment complaint and quashed the order terminating the Petitioner’s employment. This decision, however, was challenged in appeal through two Letters Patent Appeals (“LPAs”), filed separately by the Respondent and its Secretary before the Division Bench of the Delhi High Court, seeking to assail the judgment of the learned Single Judge. The Division Bench stayed the operation of the impugned judgment. [Para’ 9]

Aggrieved by the stay, the Petitioner approached the Supreme Court by way of a Special Leave Petition (SLP). The Supreme Court, while not interfering with the pending appeal, modified the stay in favour of the Petitioner and directed the Respondent to pay her emoluments until the determination of the appeals before the Division Bench. [Para’ 10]

During the appeal proceedings, the Division Bench observed that the Secretary had not been heard at the stage of the original writ adjudication and had not been impleaded as a party. In view of this, the Hon’ble Bench set aside the Single Judge’s judgment and remanded the case for fresh adjudication. Pursuant to these directions, the learned Single Judge ordered the impleadment of the Secretary as Respondent no. 4 and proceeded to rehear the case. [Para’ 11]

QUESTIONS DETERMINED BY THE COURT

1. Whether the LCC had exclusive jurisdiction to examine the complaint?
2. Whether the Petitioner’s termination by an OM is liable to be quashed?

THE CORE ISSUES AND OBJECTIONS ADDRESSED BY THE COURT

1. On objection to the amendment of Pleadings

It was contended by the Respondent that two distinct causes of action could not be combined into a single proceeding and that the amendment effectively altered the nature of the writ petition, rendering it impermissible under law. They relied on Order VI Rule 17 of the Code of Civil Procedure to contend that the additional reliefs were unsustainable. The Hon’ble Court decided that present proceeding being writ proceedings would not be bogged down by the procedural requirements under the CPC

2. On the Issue of Jurisdiction of the LCC to examine the complaint.

The Petitioner argued that the LCC had exclusive jurisdiction because the allegations were against the “employer” as defined under Section 2(g)(i) of the Act, and the Respondent’s ICC was not statutorily compliant. Petitioner also contended that the Respondent is an institution wholly financed by the Ministry of Culture and should be treated as “an organization or institution of the appropriate Government”. It was further contended that the Secretary is the Principal Executive Officer and administrative-in-charge, who also sanctioned the ICC and oversaw her appointment and termination, and therefore squarely falls under the definition of the “employer”. [Para’82 and 84]

Conversely, the Respondents (the Akademi and the Secretary) argued that the executive authority vested in the Executive Board, with the President as its head, which makes the President, not the Secretary, the “employer” under the Act. They asserted that the Secretary was merely a functionary under the President’s control. The Respondent thereby contended the Petitioner had submitted to the ICC’s jurisdiction, thereby estopped from approaching the LCC. [Para’ 85]

The Hon’ble Court adopted a broad and purposive interpretation of the term “employer” as defined under Section 2(g) of the Act, recognizing the purpose of legislation designed to ensure a safe and dignified workplace for women. The Court found that the Secretary unequivocally falls within the definition of “employer” under Section 2(g)(i), (ii), and (iii) of the Act.

Section 6(1) of the Act: empowers the LCC to entertain complaints in two specific situations:

1. where the establishment has failed to constitute an Internal Complaints Committee (ICC) in accordance with the statute; or
2. where the complaint is against the “employer” as defined under Section 2(g) of the Act.

The Hon’ble Court noted that the Respondent is a fully financed institution by the Ministry of Culture. Accordingly, it qualifies as a “workplace” under Section 2(o)(i) of the POSH Act, which includes any establishment substantially financed by the appropriate Government. [Para’88]

Now, the fundamental question was whether the Secretary of the Akademi is qualified as the “employer” under the Act.

Section 2(g) of the POSH Act defines “employer” broadly and inclusively, covering:

1. the head of any organization, establishment, or office of the appropriate Government or local authority or any officer specified by such Government or authority;
2. any person responsible for the management, supervision, and control of the workplace not covered under (i); and
3. any person discharging contractual obligations towards employees in such workplaces.

The Court examined the role and function of the Secretary and found him to be the “Principal Executive Officer” of the Respondent (Akademi), who was empowered to execute contracts, oversee day-to-day administration, and exercise employment-related powers. The Hon’ble Court reasoned that the secretary plays a decisive role in the employment relationship, and thus falls within the definition of the “employer”. [Para’ 89]

The Hon’ble High Court relied upon the case of Sohail Malik v. UOI,² wherein the Hon’ble Delhi High Court interpreted the term ‘employer’ widely to secure protection against workplace harassment. The Court held that the LCC had jurisdiction to inquire into the Petitioner’s complaint and rejected the arguments of Akademi and Secretary that only the President or Executive Board could be “employer” due to supervisory oversight, emphasizing that such an interpretation would reduce the protection offered by the POSH Act to a mere formality and undermine its remedial purpose. [Para’97]

3. The Hon’ble Court also addressed the Respondent’s objection that the Petitioner’s recourse to the Local Complaints Committee (LCC) amounted to impermissible forum shopping.

Respondent’s Arguments: It was argued that the Petitioner had initially submitted a complaint to the Executive Board and voluntarily participated in proceedings before the ICC, and even forwarded her police complaint to the ICC. According to the Respondent, once the ICC was seized of the matter, approaching the LCC for the same grievance was inconsistent with the statutory scheme of the Act and amounted to forum shopping. The Respondent further invoked the doctrine of election, contending that where the Petitioner, having chosen one remedy, should be estopped from seeking another. [Para’100]

Petitioner’s Arguments: The Petitioner, in contrast, emphasized that she never accepted the ICC’s jurisdiction. From her very first email to the Respondent, she expressly denied the ICC’s competence and requested an independent external committee. She reiterated this objection on subsequent occasions and filed her formal complaint of sexual harassment before the LCC, before the ICC’s inquiry had even commenced. Upon receipt of ICC notices, the Petitioner promptly objected to its jurisdiction, citing bias due to the involvement of the Secretary and other internal members, and refused to participate in their proceedings. [Para’ 102]

Doctrine of Election is Not Attracted: The Hon’ble Delhi High Court decisively rejected the Respondent’s argument of forum shopping and found that the Petitioner’s actions were never inconsistent or opportunistic:

• The Petitioner consistently objected to the ICC’s jurisdiction at every stage, never acquiesced in its inquiry, and sought a fair process external to the organization, given the sensitivity of her complaint against a senior official.
• The facts demonstrated that her recourse to the LCC was not a strategic or parallel attempt to secure a favourable outcome, but a genuine and necessary pursuit of justice when faced with internal bias and procedural illegitimacy.
• The Court clarified that the doctrine of election was not attracted because the Petitioner had not in fact chosen between two parallel remedies; she had steadfastly declined to submit to the ICC and pursued her complaint before the statutorily competent LCC.

4. Validity of the termination of the Petitioner’s services during probation

The Hon’ble High Court held that the office memorandum issued by the Respondent terminating the Petitioner’s services was liable to be set aside:

It was argued by the Petitioner that the discretion of the employer to terminate the employee cannot be exercised arbitrarily. Further the Petitioner relied upon the case of Abhay Jain v. High Court of Rajasthan³ wherein the Supreme Court decided that if an organization decides to hold an inquiry alleging the inefficiency of the probationer, and thereby terminating the employee as a result of the inquiry held without informing the probationer such termination would be punitive and is liable to set aside. [Para’ 30]

The Court emphasized that judicial review is not excluded simply because the order of termination is framed as a discharge simpliciter. Courts are empowered to go behind such an order and examine whether it is a façade masking a punitive action or a reprisal for extraneous reasons. It was noted, following the Supreme Court’s ruling in Dipti Prakash Banerjee v. SNB National Centre for Basic Sciences⁴, that where termination is shown to be vitiated by mala fides or is based on irrelevant considerations, the courts interference is warranted, even in the case of probationers. [Para’ 101]

Retaliatory Intent of Respondent

A critical factor noted by the court was the timing of the termination, which occurred during the pendency of the sexual harassment complaint against the Secretary. The Respondent proceeded with the Discharge OM without informing the Court, even while interim orders protecting the Petitioner’s employment were in effect. The Court observed that this sequence raised a strong presumption of retaliatory intent, as the Petitioner’s removal coincided directly with her assertion of legal rights against the Secretary.

Lack of Due Process

The Hon’ble Court scrutinized the manner in which the termination was executed. It found that the process was rooted in the recommendations of a “Review Committee,” a body not recognized by the Respondent (Akademi’s Constitution or Service Bye-laws). There was no disclosure regarding its composition, meeting dates, or minutes. The procedure lacked transparency and denied the Petitioner a meaningful opportunity to present her case.

The Court, while deciding this issue, gave considerable weight to the fact that the Office Memoranda and adverse remarks “unsatisfactory performance” underpinning the termination decision were either issued by the Secretary, the person who was accused of sexual harassment. The Apex Court in Punjab & Sind Bank v. Durgesh Kuwar⁵ had cautioned against discharging female employees, holding such actions to be lacking in fairness and vitiated by mala fides. The Court highlighted that the Respondent failed to produce any independent or neutral assessment of the Petitioner’s performance that could justify her dismissal.

Further, the Hon’ble Court rejected the Respondent’s argument that the Petitioner could have appealed her termination to the Executive Board. It concluded that since the Executive Board itself had approved the discharge, the appellate forum was illusory and no impartial mechanism for redress existed.

COURT’S DECISION

The Court decisively held that the Secretary of the Akademi qualifies as the “employer” under Section 2(g) of the Act. Accordingly, the LCC has exclusive jurisdiction to adjudicate the petitioner’s sexual harassment complaint, thereby invalidating the actions and jurisdiction of the ICC constituted by the Respondent. 

Importantly, the Court quashed the impugned OM, which terminated the petitioner’s services during the pendency of her complaint. This termination was held to be illegal and mala fide, carried out in blatant violation of court orders and in retaliation against the petitioner’s pursuit of justice for sexual harassment. As a remedial measure, the Court ordered the petitioner’s immediate reinstatement with continuity of service, full back wages, and all consequential employment benefits.

CONCLUSION

The Hon’ble High Court, through this judgment, has reaffirmed that the Act embodies a protective, remedial scheme that is to be interpreted broadly but practically, ensuring accountability and procedural fairness for women facing sexual harassment at work. It strengthens institutional compliance imperatives and rejects narrow or technical interpretations of the definition U/s 2(g) “employer”. The Court’s stance on mala fide termination stresses that the law guards not only against sexual harassment but also against victimization of complainants, ensuring that whistle-blowers cannot be casually penalized under the guise of contractual probation.

Written By: Shubhangi Dengre (Associate)

1 X v. Akademi & Ors. [2025 DHC 7501]

2 2023 SCC OnLine Del 3794

3 (2022) 13 SCC 1

4 (1999) 3 SCC 60

5 Civil Appeal No 1809 of 2020