Introduction
Serving on an Internal Complaints Committee (ICC) under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) is a role of significant legal and ethical responsibility. While the statutory penalties for non-compliance under the Act are primarily directed at the employer, this article posits that individual Internal Complaints Committee (“ICC”) members face substantial and multifaceted personal liabilities.
These risks, which can manifest as civil lawsuits, professional disqualification, or career damage, are rooted in the unique quasi-judicial authority of the ICC. This analysis details the legal and procedural pitfalls that create this exposure and provides a comprehensive, actionable framework.
The findings indicate that personal liability for an ICC member is not a matter of a direct statutory fine but rather a consequence of negligence, procedural failure, or a breach of duty, each of which can render an entire inquiry legally worthless and expose the member to litigation. The ultimate protection lies in strict adherence to the principles of natural justice, meticulous documentation, and unerring professional independence.
The Fiduciary Role of the ICC
The legal authority and prescribed structure of the Internal Complaints Committee are the foundational sources of personal responsibility of individual members and, consequently, their potential liability. The ICC is not a mere internal human resources function; it is a legally mandated body that performs an essential public function.
The ICC as a Quasi-Judicial Body
Under the POSH Act, every employer with ten (10) or more employees is legally compelled to constitute an ICC to address sexual harassment complaints. This body serves as the initial in-house mechanism for redressal.
The law vests the ICC with considerable power, specifically granting it the same authority as a Civil Court under the Civil Procedure Code, 1908. This quasi-judicial power entitles the committee to initiate formal inquiries, summon parties and witnesses, and compel the production of documents or other forms of evidence.
The delegation of such significant authority to a private or institutional body is a critical point of analysis. It elevates the ICC member from a standard employee to an individual performing a legal and public function. As a consequence, their actions are held to a higher standard of care and diligence. A failure to execute these duties with the required integrity and precision can be viewed as a dereliction of a public trust, which forms the legal basis for an aggrieved party to pursue a legal remedy against the individual member, rather than just the employer. The legal mandate of the IC/ ICC is to ensure the smooth functioning of the provisions of the POSH Act and to fulfil its objectives.
Statutory Composition and the Implied Mandate for Impartiality
To ensure fairness, the POSH Act prescribes a specific, mandatory structure for the ICC. The committee must comprise:
- A Presiding Officer: A woman employed at a senior level at the workplace.
- Two Internal Members: Employees who have demonstrated a commitment to the cause of women or have legal or social work expertise.
- An External Member: A person from a non-governmental organisation (NGO) or an association dedicated to women’s rights, or a person familiar with sexual harassment issues.
Furthermore, the law mandates that at least 50% of the total members must be women. The inclusion of an external member is particularly significant. This provision was intentionally carried forward from the Vishakha Guidelines to introduce an independent perspective and obviate an institutional bias that may be present within an organisation.
The external member is meant to be a neutral, unbiased party, not involved in internal company politics. This structure is designed to safeguard the integrity of the process, and any deviation from it can be a source of legal vulnerability for all members.
Core Duties and the Burden of Execution
The legal mandate of the ICC is a blend of reactive and proactive duties. The core functions include:
- Receiving Complaints: The ICC provides a confidential and accessible platform for employees to file grievances.
- Conducting Investigations: The committee must conduct a fair and impartial inquiry by gathering evidence, interviewing witnesses, and ensuring the principles of natural justice are followed.
- Taking Corrective Action: Based on its findings, the ICC recommends disciplinary or other actions to the employer, which may range from a written apology to termination of services.
- Maintaining Records and Reporting: The ICC is legally required to keep detailed records of all cases and submit an annual report to the employer and District Officer, detailing the number of cases filed and resolved.
The successful execution of these duties requires more than good intentions. It demands strict adherence to process and a deep understanding of the law. The weight of this burden is the direct source of a member’s exposure to personal liability.
The Grounds for Personal Liability
While the statutory penalties of the POSH Act are primarily levied on the employer, the personal legal risks for an ICC member are real, complex, and often more damaging on an individual level. Some of the key points include:
(A) The Dichotomy of Liability: Corporate vs. Individual
The penalty framework under the Act is straightforward in its application to employers. Non-compliance, such as a failure to constitute an ICC or a refusal to implement its recommendations, can lead to a monetary fine of up to INR 50,000 (Rupees Fifty Thousand) for the first offence. Repeated violations can lead to a doubling of the penalty or even the cancellation of the employer’s business license.
This legal framework creates a powerful dynamic: the procedural failures of the ICC can directly result in financial and reputational harm to the organisation. When an employer faces legal action and a financial penalty because an inquiry was conducted improperly, the organisation is highly likely to hold the individual ICC members responsible. While the company may pay the fine, the ICC members face severe professional consequences, including reprimands, termination, or career damage, for causing the corporate entity this loss. Therefore, while the Act may not impose a direct monetary penalty on the individual, their actions can lead to a different, but equally significant, form of personal liability.
(B) Primary Grounds for Individual Liability and Disqualification
Legal recourse against an ICC member typically stems from civil or, in rare cases, criminal proceedings initiated by an aggrieved party, rather than a direct statutory fine under the POSH Act itself. The most common grounds for such actions are:
- Breach of Confidentiality: This is one of the most direct forms of personal liability. Section 16 of the POSH Act prohibits the disclosure of any details related to the complaint, including the identities of the complainant, respondent, and witnesses. A breach of this confidentiality can result in a statutory fine of INR 5,000 under Section 17 of the POSH Act.
However, the true risk is far greater. Leaking information can compromise the investigation, harm the reputation of all parties, and expose the member to a civil suit for defamation, which can result in substantial monetary damages.
- Dereliction of Duty and Gross Negligence: The ICC is a quasi-judicial body with a duty to perform its functions with due diligence. A failure to adhere to the mandated timelines and procedures can lead to an entire inquiry being deemed invalid.
The law mandates that the inquiry must be completed within 90 days from the date of the complaint. Procedural failures, such as a delay in the investigation, can impede access to justice for the victim and may expose the ICC members to legal challenges.
- Abuse of Position and Misconduct: The POSH Act clearly outlines grounds for the disqualification of an ICC member, which include a conviction for a criminal offence, a breach of confidentiality, or an abuse of position. The continued membership of a member found to have abused their position is considered detrimental and harmful and against the public interest. This statutory provision for disqualification indicates a high standard of ethical conduct. A member who abuses their authority for personal or retaliatory reasons can be legally challenged on the grounds of a breach of their fiduciary duty to the process.
The Absence of Direct Statutory Fines on Individuals
It is essential to understand that the penalty provisions are structured to hold the employer, as the entity responsible for creating a safe workplace, accountable. Legal remedies for an aggrieved party against an individual member typically do not originate directly from a penalty clause within the POSH Act but rather from other legal avenues, such as civil lawsuits for damages. The following table provides a clear differentiation of the liabilities.
| Liability Type | Liability of the Employer | Liability of ICC Members |
| Legal Basis | Non-compliance with the POSH Act (e.g., failure to constitute ICC, not acting on recommendations). | Procedural failures, negligence, breach of confidentiality, abuse of position, or professional misconduct. |
| Primary Penalty | Monetary fines (up to INR 50,000 for the first offence) and license cancellation for repeat offences. | Civil lawsuits for negligence, defamation, or breach of fiduciary duty; professional disqualification; damage to career. |
| Source of Penalty | Statutory penalties under the POSH Act. | Civil or criminal proceedings initiated by an aggrieved party in a court of law. |
The Doctrine of Natural Justice
Judicial rulings have provided clarity on the personal liabilities of ICC members. These precedents demonstrate that a failure to adhere to due process can invalidate an entire inquiry and expose the committee members to legal action, regardless of their intentions.
The Imperative of Procedural Fairness
The core of any legal proceeding is fairness. The ICC, as a quasi-judicial body, is legally bound to follow the principles of natural justice. These principles ensure that both the complainant and the respondent are given a fair hearing and that the investigation is conducted without bias.
This includes providing the respondent with a copy of the complaint within seven days of receipt and giving both sides an equal opportunity to present their case and evidence.
A key element in judicial interpretation is the balance between procedural fairness and creating a victim-friendly environment. A written cross-examination is considered a sufficient and legally compliant alternative to meet the goals of the principles of natural justice.
Key Judicial Precedents and Their Implications for Personal Liability
Several landmark judgments have highlighted the profound legal consequences of procedural and structural failings of the ICC:
- Ruchika Singh Chhabra v. Air France India {(2018) SCC OnLine Del 9340}: In this case, the Delhi High Court invalidated the entire ICC proceeding because the external member’s appointment was not in accordance with the POSH Act.
The external member was a lawyer who had a prior professional relationship with the company, which constituted a conflict of interest. The ruling states that a foundational administrative error in constituting the committee can render all subsequent actions null and void. The implication for ICC members is that their work is legally fragile if the very structure of the committee is flawed.
- Malabika Bhattacharjee v. Vivekananda College (WPA 9141 of 2020): This Calcutta High Court judgment established a significant precedent by ruling that a sexual harassment complaint under the POSH Act is maintainable even when the complainant and the respondent are of the same gender.
The court emphasised the gender-neutral nature of the Act. This judgment expands the scope of responsibility of the ICC and states the need for continuous training and a contemporary understanding of the law. A failure to accept such a complaint based on an outdated gender-centric view could be seen as a dereliction of duty, a lapse that could contribute to personal liability.
- Banani Chattopadhyay vs. Union of India and Ors. (WPA 9089 of 2020): The case involved a complaint of sexual harassment filed by a Deputy Manager against the Chairman-cum-Managing Director of the company. The Court found that the Chairman-cum-Managing Director, as the head of the organisation, fell within the definition of “employer” as per Section 2 (g) of the POSH Act.
The Calcutta High Court ruled that since the complaint was against the employer, the Internal Complaints Committee (ICC) did not have the jurisdiction to hear the matter. It affirmed that the complaint should have been directed to the Local Committee (LC), which is specifically constituted to handle such cases.
Note: The role of an External Member is not just to provide advice but to serve as a legal pillar of neutrality and impartiality. Their presence is a statutory requirement intended to prevent power dynamics or internal biases from influencing the inquiry. As a compensated professional, often an expert in law or social work, the external member operates under a unique set of legal risks.
A Practical Guide for Members
The best defence for the members of the ICC against personal liability is not to be found in legal loopholes but in a proactive commitment to professional excellence, procedural diligence, and ethical conduct.
Here are some of the key points to consider:
(A) The Importance of Continuous Training and Expertise
A common pitfall for ICCs is a lack of adequate training and awareness, which is a direct cause of the procedural errors that lead to legal challenges.
The ICC requires regular training that goes beyond a basic overview of the Act. Effective training should include mock investigations, role-playing, and regular updates on recent case law to ensure members are equipped to handle complex and sensitive cases. The commitment of a member to continuous professional development is the primary defence against a future claim of incompetence or negligence.
(B) Documentation and Record-Keeping
Documentation is the single most important defence against a future legal challenge. The ICC is legally mandated to maintain comprehensive records of every complaint, investigation, and outcome.
These records should create a traceable paper trail, from the initial receipt of the complaint to the final report. Every hearing, interview, and piece of evidence must be meticulously documented. In the event of litigation, these records will be the primary evidence to demonstrate that due process was followed, the investigation was fair, and the decisions were reasoned and based on evidence. A failure to document every step leaves the member vulnerable to the claim that the inquiry was not conducted properly.
(C) Adherence to Statutory Timelines
The POSH Act imposes strict timelines on the inquiry process, and a failure to adhere to them can be a form of procedural negligence. The inquiry must be completed within 90 days from the date the complaint is received, and the final report must be submitted to all parties within 10 days of the inquiry’s completion.
While courts have occasionally shown flexibility in exceptional circumstances, the general trend is to penalise delays. Procedural compliance is a fundamental component of due diligence.
| Action | Timeline |
| Complaint Filing | Within 3 months of the incident. |
| Notice to the Respondent | Within 7 days of receiving the complaint. |
| Completion of Inquiry | Within 90 days. |
| Submission of Report | Within 10 days of completion of the inquiry. |
| Implementation of Recommendations | Within 60 days by the employer. |
| Filing an Appeal | Within 90 days of the recommendations. |
(D) Upholding Ethical Conduct and Unerring Neutrality
The most important personal protection for an ICC Member is their ability to act with absolute independence and without bias. A member must be prepared to disqualify themselves if they have any personal or professional conflict of interest, as any direct or indirect interest can compromise the impartiality of the process. ICC members are often subject to pressure from senior management to influence outcomes.
Capitulating to such pressure to reach a conclusion that deviates from the wishes of senior management is an action that could directly lead to legal action from a future aggrieved party. Personal legal risk of a member is inversely proportional to their independence. The integrity of the process is their greatest professional asset and their most important legal shield.
Conclusion & Final Recommendations
Personal liability for ICC members under the POSH Act, while not a direct statutory fine (with the exception of a confidentiality breach), is a very real, complex, and high-stakes risk. The primary liabilities stem from procedural failures and ethical breaches, which are magnified by the unique quasi-judicial nature of the role of ICC. A failure to perform a duty with diligence and in strict adherence to due process can invalidate an entire inquiry and lead to civil litigation, career damage, and professional disqualification.
The analysis illustrates a clear causal chain: a lack of knowledge leads to procedural errors, which in turn lead to legal challenges, and these challenges expose the individual members to personal liability.
To go through and solve such risks, an ICC member must adopt a professional mindset and a commitment to execution. The most effective way for an individual to protect themselves is to:
- Demand and Receive Ongoing, Advanced Training: This is the primary defence against legal and procedural incompetence.
- Uphold the Principles of Natural Justice Scrupulously: Ensure a fair and unbiased hearing for all parties by giving them equal opportunity to present their case.
- Maintain Unerring Confidentiality: Protect all information and parties involved from the moment a complaint is received, as this is the most direct statutory risk.
- Practice Documentation: Treat every step of the process, from the receipt of the complaint to the final report, as a potential piece of evidence in a future legal proceeding.
- Prioritise Independence: Never compromise the integrity of an inquiry to placate internal or external pressures. The integrity of the process is the member’s most important legal shield.
YLCC would like to thank Nikunj Arora for his valuable insights into this article.
