Introduction

In a recent judgment titled Nagaraj G.K. v. Additional Labour Commissioner Appellate Authority under PoSH Act, 2013 and Others[1], the Karnataka High Court (“Hon’ble HC”) has held that despite the absence of a specific provision in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”) for granting an interim order, the Appellate Authority has the power to consider interim application.

Brief Facts

The petitioner was appointed as the Finance Officer in the respondent management. During his employment, a complaint alleging sexual harassment at the workplace was lodged against him. He responded to the complaint in detail contending it to be false. The Internal Complaints Committee (“ICC”) made its recommendation by way of a final report and also passed a transfer order for the petitioner. The petitioner challenged both the orders by filing an appeal with the Appellate Authority and also filed an application for a stay. The Appellate Authority had not passed any orders and had only issued a notice in the appeal without considering granting an interim order for the impugned proceedings.

The petitioner invoked the writ jurisdiction of the Hon’ble HC to challenge the order of transfer and the final report given by the ICC, arguing that since the Appellate Authority does not have the power to consider the application of stay hence the Petitioner has no other remedy but to approach the Hon’ble HC.

Issue

The Hon’ble HC, without going into the merits of the case, framed the issue that whether the Appellate Authority has the power to consider the interim application. – Answered in the affirmative

Observations of the Hon’ble HC

The petitioner had raised a legal grievance, asserting that once an appeal is filed, cases involving genuine grievances may remain unresolved until the appeal is adjudicated. This delay, caused by the absence of a decision on the application for stay, could result in a prolonged period without relief during the interim. The Hon’ble HC considered the grievance of the petitioner and decided to not enter into the correctness of the orders challenged by the petitioner since the appeal had already been preferred under Section 18 of the Act before the Appellate Authority.

The Hon’ble HC analyzed the provisions of the Act and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“Rules”), in particular section 18 of the Act and rule 11 of the Rules. The Hon’ble HC observed that, while the provisions under the Act and the Rules do not explicitly address the granting of interim relief by the Appellate Authority, it is important to note that the Act does not contain any express prohibition against the same.

The Hon’ble Court relied on case laws and also on the works of some legal scholars like Domat and Maxwell. The Court referred to the case of Chikkathimmegowda v. Deputy Commissioner[2], which held that when the Appellate Authority has the power to set aside impugned proceedings, it can be inferred that the authority also possesses the implied power to issue an interim order of stay. Further, the Court reinforced this position by referencing the Supreme Court's ruling in Income Tax Officer, Cannanore v. M.K. Mohammed Kunhi[3]. In that case, the Court addressed the powers of the Income Tax Appellate Tribunal under the Income Tax Act, 1961, where, at the relevant time, there was no explicit provision granting the Tribunal the authority to grant a stay against the demand of tax. The Supreme Court concluded that the power to grant a stay was inherent and could be read into the Tribunal’s powers to decide the appeal.

 

The Hon’ble HC further cited and relied upon the scholarly works of various legal experts, such as Domat[4] who, in his work has stated that “It is the duty of the Judges to apply the laws, not only to what appears to be regulated by their express dispositions, but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it.” Furthermore, the Hon’ble HC took into account the academic insights of Maxwell[5], which states, that “Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdictio data est, ea quoque concessa esse videntur, sine quibus jurisdictio explicari non potuit.” It finally also relied upon the maxim “ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest”, which has been applied by the Supreme Court in various cases. The maxim means that every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective.

In light of the aforementioned considerations, the Hon’ble HC, while disposing of the petition, held that despite the absence of a specific provision authorizing the granting of interim orders, the Appellate Authority under the Act possesses the inherent power to consider and decide upon the petitioner’s interim application.

Insights for the Employer

The Hon’ble HC’s decision reflects the broader interpretation of the Appellate Authority's powers in the absence of explicit statutory provisions, recognizing the necessity to address interim relief wherever justified by the circumstances of the case. The ability of the Appellate Authority to issue interim orders reinforces the importance of maintaining a safe and respectful workplace.

The employers must recognize that since the Appellate Authority holds the discretion to issue interim orders in PoSH cases, it allows the Appellate body to provide immediate relief, such as suspension or other measures before the final decision is made. Employers should be aware that this could impact their organizational processes and operations if an interim order is issued. Employers should use this to strengthen employee relations by showing a commitment to addressing sexual harassment complaints swiftly and effectively. This will help build trust and confidence among employees in the organization’s policies and procedures.

Authors 

 

Gyanendra Mishra

Partner  

Mudrika Purohit

Associate

 

Disclaimer: The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

[1] Nagaraj GK v. Additional Labour Commissioner Appellate Authority Under Posh Act, 2013 and Others, 2024 SCC OnLine Kar 1056.

[2] Chikkathimmegowda v. Deputy Commissioner, ILR 1991 Kar 3238

[3] Income Tax Officer, Cannanore v. M.K. Mohammed Kunhi, 1968 SCC OnLine SC 71

[4] Domat's Civil Law Cushing's Edn., Vol. 1 at p. 88

[5] Interpretation of Statutes, 11th Edn. at p. 350