The Kerala High Court has issued a significant directive to the State Government, mandating the formulation of guidelines to protect the anonymity of complainants in sexual harassment cases under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). The Court emphasized that, at present, the POSH Act does not provide a mechanism to ensure complainants' details remain anonymous during enquiry proceedings.
A Division Bench comprising Justice A. Muhamed Mustaque and Justice P. Krishna Kumar ruled that while safeguarding the complainant’s identity is crucial, it should not prejudice the rights of the accused employee.
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"At present, there is no mechanism to anonymize the complainant, who alleges that she faced sexual harassment or other atrocities as envisaged by the POSH Act, in the various proceedings related to the enquiry. When the right to privacy is recognized as one of the important facets of fundamental rights, a complainant who raises such a grievance is also entitled to ensure that her whereabouts are anonymized from the public domain. That said, this should be done in such a manner not prejudicial to the rights of the employee against whom the complaint is made while he defends the enquiry."
The Court has granted the State Government a period of four months to draft and implement the necessary guidelines.
In addressing the issue of anonymity, the Court referenced a decision of the Bombay High Court in P v. A & Others (2021). In that case, guidelines were issued to maintain the victim’s privacy during court proceedings. The Kerala High Court suggested that the State Government may consider these guidelines while framing their own policy.
Background of the Case
The ruling was made in response to a petition filed by Thomas Antony, a Deputy Director in the District Tourism Office. Antony challenged the enquiry proceedings initiated against him under the POSH Act following a complaint by a female co-worker, alleging various forms of harassment. The Internal Complaints Committee (ICC) submitted a report, and a show cause notice was issued to Antony, proposing his demotion to the junior-most position in the category of Tourist Information Officer.
Seeking relief, the petitioner approached the Kerala Administrative Tribunal, which dismissed his plea as premature, stating that he could challenge the final order after completion of the enquiry. Aggrieved by this decision, he approached the High Court.
The petitioner argued that he was denied participation in the enquiry and was not given an opportunity to cross-examine the complainant. He contended that the enquiry should have adhered to service rules applicable to him under the Kerala Civil Services (Classification, Control, and Appeal) Rules.
The Court, referring to Sections 11 and 13 of the POSH Act, held that such an enquiry is in the nature of a disciplinary enquiry. Therefore, it must follow the prescribed procedures under departmental service rules.
The Court also addressed the issue of cross-examination in cases of sexual harassment complaints. It cited Sibu L S v. Air India Ltd. New Delhi (2016), emphasizing that before allowing cross-examination, the ICC must assess whether the complainant can depose fearlessly without intimidation.
"In sexual harassment complaints, sometimes the complainant may not have the courage to depose all that has happened at the workplace. There may be an atmosphere restraining free expression of the victim’s grievance before the Committee. The privacy and secrecy of such victims must be protected. Verbal cross-examination is not the sole criterion to controvert any statement given by the aggrieved before the authority. The Committee must analyze whether the complainant can testify without intimidation before permitting cross-examination."
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The Court made it clear that the enquiry would not be considered void solely because the petitioner was not allowed to verbally cross-examine the complainant.
The High Court also underscored that disciplinary proceedings should not be challenged at every interim stage, as it would prevent them from reaching finality.
"As a general rule, a delinquent facing a disciplinary enquiry should not be permitted to challenge the intermediary proceedings until the enquiry and the consequential decision of the disciplinary authority are concluded. If there is any violation of natural justice or statutory provisions, the employee can raise those concerns while challenging the final outcome. Otherwise, challenging proceedings at every interim stage would disrupt the system of public administration."
Accordingly, the Court directed the enquiry committee to conduct the proceedings as per the service rules applicable to the Petitioner. It further stated if the enquiry proceedings were conducted as per law, it may proceed to further stages.
Counsel for Petitioner: Senior Advocate Elvin Peter PJ, Advocates K.R.Ganesh, Jeleetta Gregory Anamika M.J. Adarsh Babu C.S.
Counsel for Respondents: Government Pleader Sunilkumar Kuriakose
Case Title: Thomas Antony v State of Kerala
Case No: OP(KAT) NO. 80 OF 2025
