POSH Act Appeals Must Lie Only to Statutory Court/Tribunal or Notified Standing Orders Appellate Authority—Employer-Created “Appellate Authorities” Are Without Jurisdiction

Case: ASHOK UPADHYAY, SENIOR MANAGER v. UNION BANK OF INDIA
Court: Bombay High Court (Ordinary Original Civil Jurisdiction)
Date: 12-08-2026
Coram: G. S. Kulkarni & Dr. Neela Gokhale, JJ.

1) Introduction

This writ petition under Article 226 challenged disciplinary action taken by Union Bank of India against its officer, Mr. Ashok Upadhyay (Petitioner), arising from a workplace sexual harassment complaint filed by a woman employee (Respondent No.4). The central controversy did not turn on a merits review of the allegations; instead, it focused on whether the Bank’s internally constituted “Appellate Authority” under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) had any legal competence to entertain an appeal, order a reinvestigation, and thereby trigger a second ICC process culminating in penalty.

Key issues:

• Whether an employer can create/constitute an internal “Appellate Authority” for appeals under Section 18 POSH Act read with Rule 11 POSH Rules.
• If such authority lacks jurisdiction, whether an order directing reinvestigation/fresh enquiry is non est and void.
• Whether disciplinary penalty based solely on such an invalid appellate remand and reinvestigation can survive.

2) Summary of the Judgment

The Court quashed (i) the major penalty order dated 04.09.2023 reducing the Petitioner’s grade, and (ii) the departmental appellate rejection dated 03.02.2024. The Court held that the “Appellate Authority” constituted by the Bank had no jurisdiction under the POSH Act framework; consequently, its order directing reinvestigation/fresh enquiry was illegal and non est. Since the second ICC report and resulting show-cause/penalty were built on this illegal foundation, the punishment could not stand.

Importantly, the Court protected the complainant’s remedies: if Respondent No.4 remains aggrieved by the first ICC report dated 20.04.2023 (which exonerated the Petitioner), she may approach the appropriate appellate forum in law; if she institutes such proceedings within six weeks, they shall not be rejected on limitation.

3) Analysis

3.1 Precedents Cited

The judgment cites one recent Division Bench decision of the same Court:

• Shashikant Anant Kale Vs. The State of Maharashtra, through Department of Urban Development & Ors. (Writ Petition No. 1939 of 2026)
  Influence on the present decision: The Court relied on this decision to reinforce that there is a “mandate of law” for authorities to notify the appropriately constituted appellate authority so that aggrieved persons can approach a duly constituted forum, avoiding uncertainty and misdirection. In the present case, the absence of a properly notified statutory appellate forum contributed to the Bank’s misreading of the POSH appellate architecture and the resulting procedural chaos.

3.2 Legal Reasoning

(a) The statutory appellate pathway under POSH is exhaustively structured.

The Court undertook a close reading of:

• Section 18(1) POSH Act: an aggrieved person may prefer an appeal to the “court or tribunal” in accordance with service rules; if no service rules exist, appeal lies “in such manner as may be prescribed”.
• Section 2(k) POSH Act (definition of “prescribed”): prescribed by rules made under the POSH Act.
• Rule 11 POSH Rules: appeal lies to the appellate authority notified under Section 2(a) of the Industrial Employment (Standing Orders) Act, 1946.
• Section 2(a) Industrial Employment (Standing Orders) Act, 1946: “appellate authority” means an authority appointed by the appropriate Government by notification in the Official Gazette.

(b) No legal space exists for an employer to “create” a POSH appellate authority.

On a cumulative reading, the Court held that Section 18 read with Rule 11 does not confer any authority on the employer to constitute an appellate authority of its choice. Recognizing such a power would “defeat” the statutory design and amount to reading into the law what the legislature deliberately omitted.

(c) Failure to show service rules prescribing a competent forum was fatal.

The Bank was unable to identify service rules that prescribe the appellate forum as a “court” or “tribunal” under Section 18, and also could not show any source of power authorizing it to constitute an internal appellate authority. Therefore, the Bank’s internal “Appellate Authority” was held inherently without jurisdiction.

(d) Consequence: the remand for reinvestigation and everything built upon it collapses.

Since the Petitioner had already been exonerated by the ICC report dated 20.04.2023, the reopening of the matter occurred only because of the internal appellate body’s ex parte order dated 06.06.2023 directing a fresh enquiry. The Court characterized that order as non est, and noted additional procedural unfairness: the remand order was not even served on the Petitioner and was made without notice or participation.

(e) Disciplinary penalty could not be sustained in the absence of a lawful foundational process.

The disciplinary penalty dated 04.09.2023 was based on the second ICC report dated 30.06.2023—an outcome of the void remand. The Court also noted that the Bank did not claim to have initiated an independent departmental enquiry by issuing a separate charge-sheet on an independent footing; the show-cause notice itself flowed from the second ICC report generated in consequence of the invalid appellate order. While acknowledging that in an appropriate case an employer may impose punishment based on a lawful POSH enquiry without a separate disciplinary enquiry, the Court emphasized that the process must have “due sanctity in law” and must not prejudice either party.

3.3 Impact

• Clear constraint on employers (especially public institutions): Employers cannot “fill the gap” by creating internal POSH appellate bodies. Any such forum risks being declared without jurisdiction, rendering remand/reinvestigation and consequent penalties vulnerable to judicial review.
• Operational compliance shift: Institutions must map and document the correct appellate route under Section 18: (i) a “court or tribunal” as prescribed by applicable service rules, or (ii) the government-notified appellate authority under the Standing Orders framework where Rule 11 applies.
• Remedies preserved but routed correctly: The complainant’s right to challenge an ICC outcome is preserved, but must be exercised before the legally competent forum—reducing the risk that complainants are misdirected into invalid internal processes and then face limitation barriers.
• Natural justice signal: Even apart from jurisdiction, ex parte remands and non-service of pivotal orders are highlighted as prejudicial and unacceptable in sensitive POSH matters.

4) Complex Concepts Simplified

• “Non est”: A legal act treated as if it never existed because the authority lacked power (jurisdiction) to do it. Here, the internal “Appellate Authority’s” remand for reinvestigation was treated as void from inception.
• Jurisdiction vs. merits: The Court did not adjudicate whether harassment occurred; it examined whether the body that ordered reinvestigation and triggered penalty had legal power. If jurisdiction fails, the decision collapses irrespective of factual findings.
• Section 18 POSH Act appellate design: Appeals are not to an employer’s internal hierarchy by default. They lie to a “court or tribunal” per service rules, or as “prescribed” by rules— which, under Rule 11, points to a government-notified appellate authority under the Standing Orders law.
• ICC process and disciplinary action: An employer may sometimes rely on a valid POSH/ICC process for disciplinary action, but only where the statutory process and the decision chain are lawful. If the foundational POSH process is vitiated by lack of jurisdiction, disciplinary outcomes based on it are unsafe.

5) Conclusion

The Bombay High Court establishes a crucial rule of institutional governance under the POSH regime: employers cannot constitute their own POSH appellate authorities. Appeals must be routed strictly through the forums contemplated by Section 18 POSH Act and Rule 11 POSH Rules, including the government-notified appellate authority under the Standing Orders framework where applicable. Any reinvestigation or fresh enquiry ordered by an internally created appellate body is void, and disciplinary penalties founded on such a process are liable to be quashed.

Equally significant is the Court’s insistence that misinterpretation of POSH procedure can prejudice both complainants and respondents—prompting a compliance imperative for public institutions to ensure correct notification/identification of appellate fora, and scrupulous adherence to jurisdictional and natural justice requirements.