Dr. Sohail Malik V. Union Of India

**Faraz Ahmad and Mantasha Khan

Introduction

The recent judgment by the Supreme Court of India in the case of Dr. Sohail Malik v. Union of India & Anr. (2025 INSC 1415) It is a watershed moment for gender justice in the Indian workplace. For over a decade since the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter the “POSH Act”), a glaring jurisdictional void existed: Where does a woman file a complaint if the harasser belongs to a different organisation?

Until now, the prevailing confusion has often forced aggrieved women to approach the Internal Complaints Committee (ICC) constituted under Section 4 of the POSH Act of the Respondent’s (harasser’s) organisation. This process was not only counterintuitive but actively hostile. Although it is never an easy task to report harassment, doing so in the organisation of the Respondent is a special challenge. A third-party employer does not consider the outside Complainant to be someone to whom they are responsible or bound by contract or institutional arrangements, unlike in internal cases, where the employer has a duty of care to the parties. This may give rise to a kind of protectionist atmosphere that the ICC might be naturally predisposed to protect its own employee, who is sheltered and often defended by that very organisation. Rather than grant a forum to a victim outside the organisation.

In Dr. Sohail Malik’s case, a Division Bench comprising Justice J.K. Maheshwari and Justice Vijay Bishnoi has decisively shattered this barrier. By adopting an expansive definition of “Workplace” under Section 2(o) of the POSH Act, and by carrying out both textual and contextual interpretation of Section 11, the Court has ruled that the ICC constituted at the Complainant’s workplace possesses jurisdiction to entertain the complaint, regardless of who employs the Respondent. The Court observed in Paragraph 54 that “if the aggrieved woman had to approach the ICC constituted at the workplace of the respondent for every third-party incident, it would fall short of the aforesaid object” of the POSH Act. This is a monumental victory for the safety and psychological well-being of working women. It ensures that the machinery of justice is accessible within their own professional sanctuary.

However, while the judgment settles the question of venue, it introduces a highly complex and potentially problematic answer to the question of execution. The Court, in its endeavour to bridge the gap between two different organisations, has fashioned a procedural remedy that involves handing off the baton of justice from one entity to another. While the intent is no doubt noble, thoughtfully balancing the rights of the aggrieved woman against the service jurisprudence protections available to the Respondent, the mechanics of this remedy, detailed at Issue III (Paragraphs 58 to 68) of the judgment itself, rely heavily upon Government Service Rules and create a “Two-Stage” inquiry process. This process, while creating a seamless logic for Civil Servants such as the parties in this case, presents a potential implementation nightmare for the private sector, where such rules do not exist with the same rigour or uniformity.

The Core Conflict: Authority to Inquire versus Authority to Punish

To comprehend the complexity involved in this decision, it is necessary to first analyse the principal defence available to the Appellant (the defendant), which is expressed in Paragraph 58 of the decision. The Appellant is an Indian Revenue Service Officer, who relied on the most basic tenet of the law of service jurisprudence, which is universally recognised in the general law of employment, i.e., Privity of Contract. His defence is simple yet exceedingly powerful: Only his department has the capacity to punish him.

Consequently, he argued, for an inquiry carried out by the ICC and its outcome to possess any sanctity, the inquiry must be conducted by the ICC constituted under the aegis of his own employer. The Court recorded this submission thus under Para 58: “it is only his department which can take disciplinary action against him, and so for the inquiry carried out by the ICC and its outcome to have any sanctity, the inquiry must be conducted by the ICC constituted under the aegis of the Appellant’s employer.”

This reasoning has great legal weight. In general employment law, the external party, be it another corporation’s ICC, is, in a word, a stranger to the employment contract between the Respondent and his employer. The question that naturally arises is: How can a stranger dictate whether an employee should be subjected to disciplinary proceedings, or indeed, terminated from service?

The Hon’ble Supreme Court dismissed this reasoning in Para 59 by making a crucial and very important distinction between the Fact-Finding Function and Disciplinary Function. The Court held that the Complainant’s ICC does not have the authority to impose any penalty or punishment on the Respondent, but it is vested with full authority to determine facts and prepare recommendations on them. The Court used Section 13 of the POSH Act to fill the organisational divide between the two bodies. The relevant observation reads: “Under Section 13, the inquiry report of the ICC, along with its recommendations, must be sent to the ‘employer’ and it is obligated to act upon the recommendations within sixty days… It is merely the factual inquiry which is to be conducted by the ICC constituted at the workplace of the aggrieved woman.”

The Court’s logic proceeds on the basis that the report generated by the external ICC possesses statutory sanctity. It is not merely a suggestion or an advisory opinion; rather, it is a document that triggers a legal obligation upon the Respondent’s employer. The judgment states with emphasis: “Section 13 does not state therein that the employer of the aggrieved woman and the ‘respondent’ must be one and the same.” This textual observation forms the foundation upon which the Court constructs its bridge between organisations. 

The “Two-Stage” Mechanism

The most analytically dense portion of the judgment lies in how the Court structures the inquiry process. To solve the problem of how one department reprimands an employee based on another department’s investigation, the Court imported the framework of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, creating what might be termed as an administrative mismatch: applying public sector administrative rules to a universal problem affecting private entities as well, where such frameworks do not exist.

In Paragraph 60, the Court traces the ICC’s powers to the Medha Kotwal Lele Union of India [(2013) 1 SCC 311] decision and the amendment to Rule 14(2) of the CCS CCA Rules, which deems the Complaints Committee as the Inquiring Authority for disciplinary purposes. The decisive turn occurs in Paragraph 62, when the Court brings into play the Office Memorandum of July 16, 2015, which proposes a two-step system for government servants. In Stage 1, the ICC makes a preliminary/fact-finding inquiry into the allegations. At Stage 2, after the Disciplinary Authority issues a charge sheet based on the findings from Stage 1 under Rule 14(3) of the CCS (CCA) Rules, 1965, the ICC acts as the formal Inquiring Authority in the disciplinary proceedings, deriving its role from the Proviso to Rule 14(2) of the CCS (CCA) Rules, 1965. Under Paragraph 66, the Court held that the ICC at the complainant’s workplace handles Stage 1, while the ICC at the respondent’s workplace handles Stage 2.

In Paragraph 66, the Court applies this government-specific logic to cross-organisational complaints, holding that “nothing prevents the ICC constituted at the workplace of the aggrieved woman from carrying out the preliminary/fact-finding inquiry at the first stage… the ICC constituted at the workplace of the ‘respondent’ may conduct the second stage formal inquiry, acting as the inquiring authority for the purpose of the disciplinary proceedings.”

On paper, this resembles a relay race. The Complainant’s ICC hands the baton to the Respondent’s ICC. However, this elegant metaphor conceals significant legal fissures when examined through the lens of general employment law and natural justice principles.

The most critical implementation issue is the operationalisation of Sections 12 and 13 of the Act. As an example, it is legally unclear under Section 12 whether an external ICC can advocate interim measures as transfers or leave to the employer of a respondent who is a stranger to the workplace of the complainant. In the same spirit, Section 13(3) requires that the employer should take action upon the recommendations of the ICC. Under a cross-organisational arrangement, this creates a statutory liability on the employer of a respondent to implement a penalty such as the deduction of salary or dismissal on the findings of an investigation by an external body. This not only opens the possibility of resistance by the organisation of the respondent but also runs the risk of a breach of service jurisprudence principles, in that the employer has to punish an employee based on another employer’s inquiry, drawing contention around the fairness of the procedure.

Conclusion and Way Forward

The judgment in Dr. Sohail Malik v. Union of India is, without doubt, a jurisprudential milestone that prioritises the substantive justice of a harassment-free environment over the procedural rigidity of service rules. By empowering the aggrieved woman to seek redressal of her grievances in her own professional haven, the Supreme Court has discarded one important psychological obstacle to reporting intracorporate sexual harassment. Yet, in attempting to overcome the vacuum of jurisdiction, the Court has inadvertently unleashed a procedural Pandora’s box. The Two-Stage review procedure trial mechanism, borrowed from the Civil Service Rules, seems out of place in the private sector framework and threatens to break the unity of the action. Unless the finding of fact and the imposition of punishment can be seamlessly knit together, we may create a scenario where the victim emerges victorious from the conflict of jurisdiction but succumbs to the war of execution.

To embed this judicial mandate into the statutory framework, Parliament needs to bring amendments to the POSH Act to provide for Cross-Organisational Complaints. Some important points to be inserted are to provide a proviso to Section 9 to confer jurisdiction within the complainant’s own workplace in cases where the harasser works at a different workplace, and to provide a sub-section to Section 11 to treat the complainant’s IC findings as factual and binding. This would prevent the respondent’s employer from treating the report as merely preliminary or initiating a de novo inquiry. Furthermore, Section 18 requires a consolidated appellate framework that tolls the 90-day limitation period until the final disciplinary order is passed, thereby eliminating the risk of split causes of action where findings and punishments are litigated in separate forums.

Operationalising this framework requires moving beyond judicial improvisation to regulatory certainty. Cross-organisational complaints rules must be formulated by the Central Government under Section 29. In the private sector, where Civil Service norms are not applicable, the onus is on organisations to fill this impending void with POSH Cooperation provisions in employment contracts and business agreements, so that defaulting on honouring an outside IC’s report is contract-bound. Finally, an online National POSH Portal needs to be launched that ensures seamless transfer of reports across organisational boundaries through Section 13, to ensure that cross-organisational complaints travel through a streamlined highway of justice, rather than getting lost in a procedural labyrinth.

**Faraz Ahmad is a fifth-year B.A. LL.B. (Hons.) student at the Faculty of Law, Jamia Millia Islamia. He possesses a keen interest in constitutional and human rights law, focusing his writing on the intersection of legal issues and societal problems. Faraz has interned at the chambers of several distinguished senior advocates, including Dushyant Dave, Gopal Sankaranarayanan, and Sanjay Jain. His previous publications include insightful legal commentaries for LiveLaw, such as “NHRC: Fall from a Status and its Fading Credibility,” and for The Bar Bulletin, titled “The Limits of the Courtroom: Why India’s Canine Crisis Requires Dutch-Style Statutory Reform.”   

**Mantasha Khan is a fifth-year B.A. LL.B. (Hons.) student at the Faculty of Law, Jamia Millia Islamia. She shares a deep academic interest in constitutional and human rights law, alongside other diverse fields of legal practice. Over the course of her legal education, Mantasha has worked under the guidance of prominent Senior Advocates and Advocates-on-Record, including Geeta Luthra, K.T.S. Tulsi, and Gopal Sankaranarayanan. As a frequent research collaborator, she co-authored the write-ups at LiveLaw, such as “NHRC: Fall from a Status and its Fading Credibility,” and for The Bar Bulletin, titled “The Limits of the Courtroom: Why India’s Canine Crisis Requires Dutch-Style Statutory Reform.”   

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.