Jayanti Dhingra*
Introduction
In December 2025, the Supreme Court of India in the case of Dr. Sohail Malik v. Union of India& Anr. (Sohail Malik) settled the jurisprudence on the validity of cross-organisational Internal Complaints Committee (ICC) inquiries at workplaces under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH). The core issue in this case was whether an organisation/department can conduct an inquiry into a sexual harassment complaint against an employee of another organisation/department. This was considered a long-awaited stance as female employees might be reluctant to undergo an ICC inquiry of another organisation, which can be hostile, indifferent and can cause her psychological distress.
The case of Vishaka v. State of Rajasthan has already established the guidelines for the enforcement of the fundamental rights of ‘gender equality’ and ‘right to life and liberty’ under Articles 14, 15, 19(1)(g) and 21 of the Constitution of India. POSH, being a welfare legislation, was enacted as a consequence of this judgement to provide for a safe, dignified workplace for women, and this duty is imposed upon the employer of the workplace to provide for a conducive and safe working environment for female employees and provide them with assistance in filing complaints, etc. (Section 19).
Dissecting the Case
The core issue in this case was that the respondent, who is the Appellant, worked under the Department of Revenue, whereas the ICC was constituted at the Department of Food and Public Distribution, where the aggrieved woman was employed. The interpretation of the Court revolved around the phrase ‘where the respondent is an employee’ under Section 11 of the POSH Act to decide where ICC proceedings should be carried out – at the workplace of the ‘respondent’ or that of the aggrieved woman.
The Supreme Court relied on the purposive interpretation of the statute, deciphering the intentions of the legislature to hold that a balance needs to be struck between literal and purposive rules of interpretation. The court held that the phrase ‘where the respondent is an employee’ is a procedural measure for the ICC to apply the applicable service rules. It does not specify which ICC has jurisdiction. The court interpreted the word ‘where’ as having a ‘conditional’ connotation, referring to ‘if’ or ‘whenever’ as describing a situation or condition. Therefore, the ICC of the aggrieved woman’s workplace can exercise jurisdiction as there is no statutory bar prohibiting it. The words ‘employee’ and ‘workplace’ are neutral in their meanings and intent. Section 2(m) defines a respondent as ‘a person against whom the aggrieved woman has made a complaint under Section 9’. The word used here is ‘person’, thus making it neutral. This means that it is not necessary for the respondent to be an ‘employee’ of the same ‘workplace’ as that of the aggrieved woman, nor is there any requirement to have a same/shared ‘employer’.
The Supreme Court elucidated a two-step inquiry process – first, the ICC of the aggrieved woman’s workplace would conduct a fact-finding inquiry, the recommendations of which would be forwarded to the employer of the respondent. The concerned employer has to act upon the report and recommendations of the ICC by virtue of Section 13(3)(i) and Section 19(f) of the POSH Act. Subsequently, a second-stage inquiry would be conducted by the ICC of the respondent’s department, which would take disciplinary actions against the respondent and accordingly impose penalties. If the ICC’s suggestions are not followed, a right to appeal to a court or tribunal exists under Section 18. This means that the ultimate enforcement power against the respondent vests with the respondent’s employer only.
Procedural Lapses in the Sohail Malik Case
This case, though seen as a welcoming step, has left behind some procedural loopholes. The ICC of the respondent’s workplace might be reluctant to enforce or act upon the findings of the ICC that conducted the initial inquiry. Though in this particular case, they had fully complied with it, there might be a lack of cooperation and miscommunications between departments, which was also admitted in this case by the Supreme Court. Also, a dual form of inquiry might delay the process as there can be re-assessment of facts in the second stage of inquiry, and there can be parallel proceedings in which much time and resources would be spent. Amidst this, the principles of natural justice should not be forgotten; the respondent must be given a fair hearing, and any order passed must reflect proper application of mind. Moreover, the ultimate discretion still vests with the employer to enforce the ICC reports and recommendations, which can dilute the redressal mechanism. While the appeal mechanism is given under Section 18 of POSH, this will prolong the case and will drag the victim into prolonged litigation. Also, the court did not take into account the fact that inter-employer disputes can also happen, which might hamper coordination across departments. Therefore, though this case has been projected as a victim-centric approach, the court failed to address the procedural infirmities in it.
This case diluted the control mechanism that labour law usually accords to the employer over their employees by giving the ICC of another department control over the employees’ conduct and actions. Therefore, it needs to be analysed from the employer-employee relationship tests established under the labour law regime in India.
Test for Establishing an Employer-Employee Relationship
Section 2(s) of the Industrial Disputes Act, 1947 (IDA) talks about ‘workman’ as a person employed to do any manual, skilled, unskilled, clerical, or any other work. Though the IDA does not define who is an ‘employee’ as defined under POSH, the tests establishing an employer-employee relationship need to be looked at to assess whether a person is a workman or not. An employer-employee relationship exists when the employer (as defined under Section 2(g) of the IDA) exercises some direct supervision or control over a workman, or has significant control over the work and the directions given, or when there is economic control exercised by the employer. However, with the Sohail Malik judgement, though the fact of being someone as an employer is not disputed, the judgement settles the fact that the existence of an employer–employee relationship does not determine ICC jurisdiction. Earlier, the courts had strictly required the existence of an employer-employee relationship for the POSH Act to be applicable. But the Sohail Malik judgement is a clear departure from it.
Delving into the POSH legislative framework, Section 2(f) defines the term ‘employee’ broadly as including any person working at a workplace in any capacity “on regular, temporary, ad hoc or daily wage basis, either directly or through an agent”. Similarly broad is the interpretation of the word ‘employer’ under Section 2(g), which can include anyone having control or supervision and other associated factors. The word ‘workplace’ has been defined in Section 2(o) to include physical premises or places visited during the course of employment.
While the IDA defined only a workman, the new labour codes have also defined who is an ‘employee’. The new Labour Codes are the Code on Wages, 2019, the Industrial Relations Code, 2020 (IRC), the Code on Social Security, 2020 and the Occupational Safety, Health and Working Conditions Code, 2020.
In the definition of an ‘employee’, the POSH Act is exceptionally broad in covering women potentially facing harassment at work. Under the labour codes, the definition gets narrowed down to industry-specific key roles and applicable wage requirements. Similarly, the definition of ‘employer’ under the new labour codes is establishment-centric with industry-specific roles. Whereas under POSH, the emphasis is more on control, and functional-based, extending it to both organised and unorganised sectors equally without prescribing any thresholds. This shows that POSH Act definitions are deliberately kept expansive to prioritise women’s safety from harassment across all work scenarios. The Court have also previously observed that the words ‘employer’ and ‘employee’ should be construed keeping in mind the objectives of POSH.
The Code on Social Security, 2020, provides for social security benefits to gig workers, platform workers, and unorganised workers under Chapter IX and Section 45. Sohail Malik’s judgement came on 10 December 2025 after the labour codes were made fully effective (21 November 2025). The court in Sohail Malik adopted a broad approach by remaining within the traditional employer-employee relationship. It did not extend the interpretation of ‘employee’ and ‘workplace’ to gig workers or platform workers, as they are still outside the traditional employer-employee categorisation. The court had an opportunity to discuss how cross-organisational/cross-departmental inquiries will apply to them, which is now left for future cases to decide. Therefore, there is a compliance gap to address, as many organisations’ POSH policies need revision from the traditional definition of ‘employee’ to include the gig economy as well.
Compensation Mechanism under the Code on Wages, 2019
Under the new Labour Codes, certain measures have been given to prevent sexual harassment. Section 29 of the Code on Wages, 2019 states that an employee will be disqualified from receiving any bonus if convicted of sexual harassment. There is a provision for adequate representation of women workers in the Grievance Redressal Committee under the proviso to Section 4(4) of the IRC.
However, if certain provisions are analysed between the POSH Act and the Code on Wages, 2019, there is a dilution in the effectiveness of compensation awarded to the victim. Section 18(2)(a) talks about deductions from the wages of an employee due to any fines being imposed on such a person. Section 18(3) states that the deductions made from an employee’s wages as per Section 18(2) shall not exceed 50% of such wages, and if it exceeds, the same would be recovered or carried forward (Section 18(4)). This total deduction includes other amounts, including provident fund, taxes, any fines, etc. Whereas Section 13(3)(ii) of the POSH Act states that where the Internal Committee or the Local Committee comes to a conclusion that an employee has committed any sexual harassment against a female employee, the amount shall be deducted from the salary or wages of the respondent and shall be paid to the aggrieved woman. The determination of compensation is governed by Section 15 of the POSH Act, which includes compensation for any mental agony, distress, emotional suffering, etc.
This means that while prior to the new labour laws, full penalty under POSH could be recovered from the salary or wage of the respondent, the new enactment dilutes compensation as a remedy by bringing it under a 50% cap by implication. As a result, the primary mechanism available is partial recovery through wage deductions, with any remaining amount to be paid directly by the respondent to the aggrieved woman.
This might weaken enforcement of penalties and delay the full satisfaction of compensation. The Code on Wages did not create a qualification on the enforcement of POSH penalties, nor did it specify how the compensation would be finally settled. So, it is left to be determined by the first proviso to Section 13(3)(ii) of POSH, which provides for payment directly to the aggrieved woman in case the respondent is not able to pay the full amount of the penalty. However, the statute limits this to two situations – when the respondent is ‘absent from duty ‘, or there is ‘cessation of employment’. This undermines the effectiveness of the redressal mechanism under the POSH Act. Immediate enforcement and satisfaction of compensation provide the victim with timely relief and can avoid emotional distress. Therefore, an amendment is needed to reconcile the POSH Act with the Code on Wages, by possibly creating an exception for penalties imposed under POSH and decoupling them from the restrictions on wage deductions.
Conclusion
The Sohail Malik judgement has been seen as forward-looking towards women’s safety in workplaces. With increasing interaction across departments and organisations, the wide meaning of ‘workplace’ extends enhanced protection to women. The task of inter-employer coordination, while being read into the POSH Act, should also be considered in the new labour codes. It will be seen how courts interpret the new labour codes in this case, especially as ‘employee’ has been given a definite meaning within them, while also addressing the stated procedural lapses.
* The author is a law student at O.P. Jindal Global University. The author may be contacted at jdhingra129@gmail.com.
This blog reflects the personal views of the author and does not necessarily represent the views of The Policy Chronicle