What happens when, in a workplace sexual harassment incident, the aggrieved woman files her complaint before her own employer’s ICC instead of the ICC constituted by the alleged perpetrator’s employer

The central problem that the Supreme Court was confronted with in Dr. Sohail Malik v. Union of India did not arise from a conventional workplace, where it's very straightforward if a PoSH incident is triggered. You have the victim, and the perpetrator in the same organization and reporting to the same employer, while being answerable to the ICC constituted by the same said employer.

However, complexity arises where workplaces are mixed, which is the increasingly common reality of modern work arrangements, where teams belonging to two separate organisations come together at a third location that belongs to neither employer.

These may be contracted projects, joint ventures, events, shoots, platform-based collaborations, or any mixed-operation environment where people work together without sharing a single organization.

When a PoSH incident occurs in such a setting, the legal question is not merely about liability but about jurisdiction. If the victim belongs to one organisation and the alleged perpetrator belongs to another, and the incident takes place at a neutral or third-party site, which Internal Complaints Committee controls the inquiry, conducts the investigation, and issues recommendations under the PoSH Act?

For a long time, the law did not provide a clear answer to this question. In the absence of jurisprudential clarity, organisations attempted to solve the problem contractually. A common solution was to prefigure the contracting party operating the third-place workplace as the “employer” for PoSH purposes and to deem the project site or venue as the relevant “workplace.”

This approach was intended to simplify compliance by creating a single point of reference. One ICC, one employer, one workplace. From a drafting and risk-management perspective, this appeared efficient. However, it carried a deeper assumption that went largely unquestioned: that POSH jurisdiction is fundamentally workplace-centric, and that whichever entity controls or hosts the workplace should also control the outcome of the complaint process.

What Sohail Malik makes clear is that this assumption is flawed. The Court clarified that PoSH jurisdiction is not workplace-centric in the way organisations have treated it, but victim-centric in the way the statute actually intends.

The decisive factor is not who owns or operates the physical space, nor which employer employs the respondent, but which ICC the aggrieved woman chooses to invoke.

The law does not prevent a victim from filing a complaint before the ICC constituted by respondent's organization, if the aggrieved woman chooses to do so.

However, equally and more importantly, if the aggrieved woman chooses to approach her own employer’s ICC, that ICC acquires full jurisdiction to inquire into the complaint, conduct the investigation, and issue recommendations, even if the respondent belongs to a completely different organisation.

This clarification provided in Sohail Malik's case fundamentally alters how mixed-workplace arrangements must be understood. The Court’s reasoning rests on the recognition that an ICC is not merely an internal committee of an employer, constituted as a matter of organisational discretion. It is a statutory body, mandated by law, with statutorily sanctioned autonomy and powers that are quasi-judicial in nature. An ICC has the authority to summon witnesses, examine individuals on oath, and compel the production of documents. Its findings carry binding statutory consequences, and employers are obligated under the POSH Act to act on its recommendations. Once this character of the ICC is acknowledged, it becomes untenable to argue that its jurisdiction should be determined solely by the employer under whose administrative umbrella it is constituted.

Jurisdiction, as the Court implicitly recognises, flows instead from the nexus between the aggrieved woman, the PoSH incident, the workplace context, and the statutory framework, with the final and decisive trigger being the aggrieved woman’s act of approaching a particular ICC. The ICC does not derive its authority from the employer’s consent, convenience, or contractual arrangements. It derives its authority from the statute.

Consequently, a respondent cannot insist that his organisation’s ICC be given primacy merely because he is employed there. Nor can two contracting parties, through private agreement, conclusively decide which ICC will control POSH proceedings in the event of a complaint.

Any such contractual arrangement will always remain subject to the victim’s choice of forum, and once that choice is exercised, the statutory process unfolds accordingly.

The practical implication of this clarification is significant. If the victim invokes her own organisation’s ICC, the respondent’s organisation’s ICC has no role in the inquiry, investigation, or formulation of recommendations. The respondent’s employer is nevertheless bound to comply with and implement the recommendations issued by the victim-invoked ICC under the POSH Act.

In other words, contractual convenience and workplace control cannot override statutory design. Sohail Malik reorients PoSH compliance away from employer-managed procedural control and back to its core purpose: ensuring that access to redress remains anchored in the agency and choice of the aggrieved woman.

In mixed workplaces, the forum belongs to the aggrieved woman.