Employment Newsletter - (Nov to Dec 2025)

An Internal Committee (“IC”) constituted at the workplace of the aggrieved woman has jurisdiction under the POSH Act to inquire into a complaint of sexual harassment even where the respondent is employed in a different department, as Section 11 is procedural in nature and does not impose any jurisdictional limitation based on the respondent’s workplace.

Dr. Sohail Malik v. Union of India & Anr., 2025 SCC OnLine SC 2751

The appellant challenged the jurisdiction of the IC constituted at the workplace of an Indian Administrative Service officer who had lodged a complaint of sexual harassment against him under the POSH Act. The appellant was posted as OSD, Central Board of Direct Taxes, Delhi.

The appellant argued that the phrase “where the respondent is an employee” in Section 11 of the POSH Act mandates that an inquiry must be conducted only by the IC constituted at the workplace of the respondent, particularly where disciplinary action under applicable service rules may follow. He argued that since the Department of Revenue was his controlling authority, the IC constituted under the Department of Food and Public Distribution did not have the jurisdiction to entertain the complaint filed by the aggrieved woman under Section 9 of the POSH Act. It was further contended that inter-departmental IC inquiries would be contrary to the scheme of the POSH Act.

The Central Administrative Tribunal (“CAT”) upheld the IC's inquiry and observed that the word 'workplace' has been defined in the POSH Act in relation to the aggrieved woman and the complaint under Section 9 of the POSH Act may be inquired into even when the 'respondent' has no relation whatsoever with the workplace of the aggrieved woman. Later, the Delhi High Court also confirmed CAT's decision, leading to the appeal before the Supreme Court.

The Supreme Court noted that Section 11(1) of the POSH Act outlines how an IC or Local Committee (“LC”) must act upon receiving a complaint from an aggrieved woman and that the word "where" in the section refers to situations or contingencies, not a physical location. The Court further held that the provision sets out 3 distinct scenarios: (1) where the 'respondent' is an 'employee', the IC should proceed to make inquiry in accordance with service rules applicable to the respondent; (2) where no applicable service rules exist, IC should proceed as may be prescribed; or (3)  where respondent is a domestic worker, the LC should forward the complaint to the police.

The Supreme Court further explained that the phrase "where the respondent is an employee" is a procedural trigger, directing the IC to follow relevant service rules; it is not a jurisdictional limitation. The definitions of "employee", "respondent" and "workplace" under the POSH Act are completely neutral and do not suggest that the 'respondent' must necessarily be an employee of the workplace where the aggrieved woman works.

The Court held that the IC proceedings instituted in the aggrieved woman's department can be considered the first stage of inquiry, which carries out a preliminary/fact-finding inquiry, after which the report of the IC may be sent to the employer/department of the 'respondent'. Depending on the findings of the IC (at the aggrieved woman's workplace) as the first stage, the 'employer' should then make a decision to initiate disciplinary proceedings under the applicable service rules, and in such disciplinary proceedings, the IC constituted at the workplace of the 'respondent' shall be the inquiring authority. While conducting the disciplinary proceedings against the 'respondent', the IC at the workplace of the 'respondent' shall have reference to the report of the fact-finding inquiry by the IC constituted at the workplace of the aggrieved woman.

The classification created under the EPF Scheme, between Indian employees and international workers (foreign employees) with respect to the wage ceiling for mandatory coverage, is constitutionally valid, being founded upon a reasonable differentia at foreign workers serve for shorter periods and therefore do not face the economic duress experienced by Indian workers who contribute throughout their entire service tenure.

SpiceJet Ltd. & Anr. v. Union of India & Ors., W.P.(C) 2941/2012 & W.P.(C) 6330/2021

The consolidated writ petitions were filed by SpiceJet Limited and LG Electronics India Private Limited, challenging the constitutional validity of the notifications dated October 1, 2008, which inserted and subsequently substituted Paragraph 83 in the Employees Provident Fund Scheme (“EPF Scheme”). These notifications made the EPF Scheme applicable to "International Workers" (defined as foreign employees holding non-Indian passports who work in Indian establishments to which the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (“EPF Act”) applies without any wage ceiling, whereas Indian employees drawing wages exceeding INR 15,000 per month are excluded from compulsory coverage. The petitioners also challenged the consequential demand notices and summoning orders issued by the Employees’ Provident Fund Organisation (“EPFO”).

The petitioners contended that the classification between Indian and foreign employees solely on the basis of nationality was arbitrary and violated Article 14 of the Constitution of India. It was argued that the impugned notifications created unreasonable discrimination, as foreign employees were mandated to contribute to the Scheme irrespective of their monthly pay, while Indian employees drawing wages above the statutory ceiling (INR 15,000 per month) were exempt. The petitioners further argued that such classification lacked intelligible differentia and had no nexus with the object sought to be achieved. It was also contended that the substituted Paragraph 69, which permits foreign employees to withdraw the amount standing to their credit only upon retirement after attaining the age of 58 years, was unreasonable, as such employees typically come to India for shorter durations of 2 to 5 years. The petitioners relied upon a decision of the Karnataka High Court in Stone Hill Education Foundation  [1]  which had struck down similar provisions. It was further argued that delegated legislation cannot travel beyond the powers delegated, and that since Section 2(f) of the EPF Act does not distinguish between international and Indian employees, Paragraph 83 creating such a separate class was ultra vires.

The respondents opposed the petition, contending that "International Workers" constitute a class apart from domestic employees as they contribute to the Scheme for their short stay in India (typically 2 to 5 years), unlike domestic employees who contribute throughout their employment. It was argued that foreign employees do not suffer the economic duress of contributing to the Scheme throughout their service, which forms a reasonable basis for the classification. The respondents submitted that the classification between domestic employees and foreign employees, based on the wage ceiling drawn by them, is based on reasonable differentiation, namely, the period of employment with Indian establishments. It was further argued that Paragraph 83 puts temporarily employed foreign employees in India at par with Indians temporarily employed in foreign countries with social security agreements, and that the application of the EPF Scheme to foreign nationals belonging to countries with whom India does not have a Social Security Agreement or bilateral agreement has been made mandatory without any wage cap as a social security measure.

The Delhi High Court dismissed both writ petitions, upholding the constitutional validity of the impugned notifications. The Court held that the classification between Indian employees and foreign employees with respect to the wage ceiling for mandatory EPF coverage is based on intelligible differentia and has a rational nexus with the object sought to be achieved, . The Court further held that the classification has an object sought to be achieved, namely, providing social security.

The Court approved and followed the reasoning of the Bombay High Court in Sachin Vijay Desai v. RPFC, [2]  which had upheld similar provisions, and expressly disagreed with the contrary view taken by the Karnataka High Court in Stone Hill Education Foundation, holding that the reasonability of the classification based on economic duress faced by Indian workers (which is absent in the case of foreign workers) had not been considered by the Karnataka High Court. The Court held that any State action, to meet the challenge based on Article 14, must satisfy the test that the classification is based on intelligible differentia and has a rational basis with the object sought to be achieved, and that the classification in the instant case satisfied both requirements. The Court also observed that Paragraph 83 in the Scheme has been added to implement India's international treaty obligations, and that entering into an international treaty is a sovereign prerogative; therefore, if such a provision were struck down, it would amount to taking away the legal basis for entering into and applying Social Security Agreements. Accordingly, the writ petitions were dismissed.

In private employment under aviation services, a pilot, including a pilot in command, is not excluded from the definition of “workman” merely by virtue of designation, salary, or incidental supervisory functions; the determinative test remains the predominant nature of the duties performed.

 
King Airways v. Captain Pritam Singh & Ors., 2025 DHC 11159 (DB)

The batch of Letters Patent Appeals arose from disputes between King Airways and its pilots, concerning claims for unpaid salary, incentives for extra flying hours, and allied dues. The Industrial Tribunal allowed the pilots’ claims, holding them to be “workmen” under Section 2(s) of Industrial Disputes Act, 1947 (“ID Act”) and directed the payment of withheld amounts, along with consequential reliefs. These findings were affirmed by the learned Single Judge bench of the Delhi High Court. King Airways challenged the same before the Division Bench.

The appellant–employer contended that the pilots, particularly those designated as Pilot-in-Command, were excluded from the definition of “workman” under Section 2(s)(iv) of the ID Act. It was argued that they discharged supervisory and managerial functions, exercised command over crew members, acted as examiners, and drew wages far exceeding the statutory threshold. Reliance was placed on appointment letters, operational manuals, and Rule 141 of the Aircraft Rules, 1937 (“Rule 141”), under which Pilot in Command is entrusted with overall supervision of crew members, operational oversight and command responsibilities, to submit that the pilots’ role was supervisory in nature, thereby disentitling them from the protections of labour law.

The respondent-workmen, on the other hand, contended that their principal and predominant duty was to fly the aircraft, which constituted skilled and technical work. It was submitted that the supervision over the crew members under Rule 141 is incidental to ensure the safe conduct of the flight. The pilots also relied on statutory definitions of "pilot in command" and "co-pilot" under the Aircraft Rules to argue that ensuring flight safety did not amount to supervisory control in the industrial or administrative sense. They further argued that, under settled judicial precedents, designation or salary could not override the true nature of the duties performed.

The Division Bench of the Delhi High Court upheld the findings that pilots, including pilots-in-command, are workmen under the ID Act. The Court emphasised that the dominant nature of duties test is determinative and that the primary function of a pilot is to operate the aircraft, which is a highly skilled technical function. The Court rejected the employer’s reliance on designation, salary, and incidental supervisory responsibilities, holding that such factors do not, by themselves, attract the exclusion under the definition of workman under the ID Act. It was further held that the use of the term “supervise” in aviation regulations cannot be mechanically imported into labour law to deny statutory protection. The Court noted that although Rule 141 may employ the expression "supervise", nothing was placed on record to demonstrate that any actual supervisory authority is, in practice, exercised by the pilot-in-charge over the crew members. The Court also set aside the remand order passed in the connected appeal, holding it to be unsustainable, and affirmed the grant of back wages, noting that the termination was patently illegal and contrary to principles of natural justice.

A writ petition challenging the findings and recommendations of IC constituted under the POSH Act is not maintainable where the employer and IC are private entities and no failure to discharge a public duty is shown.

ABC v. Internal Complaints Committee & Ors., W.P.(ST) No. 15574 of 2025.

The petitioner, employed as a Captain with a private airline, challenged the final report submitted by the IC constituted under the POSH Act pursuant to a complaint made by a trainee Captain alleging inappropriate conduct. The IC, after furnishing the complaint to the petitioner, considered his written response, examined the complainant, the petitioner, and witnesses, and shared its preliminary findings. It issued recommendations, including a final warning, refresher POSH training, temporary ineligibility for upgrade for a period of 6 months, and suspension of Employee Leisure Travel benefits for a period of 45 days from the date of issuance of the final warning letter. Aggrieved primarily by the procedure adopted by the IC, the petitioner invoked the writ jurisdiction of the Bombay High Court seeking quashing of the report and a direction for a fresh inquiry.

The petitioner contended that the inquiry was vitiated by grave violations of principles of natural justice, including denial of opportunity to cross-examine witnesses, absence of personal hearing, lack of objective reasoning in the findings, and breach of confidentiality, and urged that such procedural infractions justified invocation of writ jurisdiction notwithstanding the availability of an appellate remedy under Section 18 of the POSH Act. The respondents opposed the petition on the ground of maintainability, asserting that they were private entities not amenable to writ jurisdiction, that the IC had duly conducted the inquiry within its jurisdiction, and that all procedural grievances could be raised before the statutory Appellate Authority.

The Bombay High Court held that the writ petition was not maintainable, observing that neither the employer nor the IC could be said to be discharging a public duty so as to attract writ jurisdiction. The court distinguished between cases where the IC refuses to discharge its statutory duty to inquire into the complaint of sexual harassment in accordance with the provisions of the POSH Act therein and thereby fails to discharge its duty and obligation to the public at large, created by a statutory regime, and the cases where the IC allegedly conducts the inquiry not in conformity with the provisions of the POSH Act and the principles of natural justice. The Court held that in the latter case, the infraction of the procedure or the transgression of the jurisdiction would be the matter which can be legitimately raised before the Appellate Authority under the POSH Act.

The Court further held that the POSH Act provides a complete mechanism, including a statutory right of appeal, and that alleged violations of natural justice or procedural defects do not warrant bypassing the appellate remedy.

On the facts, the Court found that the petitioner had been furnished with the complaint and preliminary findings and given an opportunity to respond, that the denial of cross-examination did not cause prejudice in the circumstances where material facts were not in dispute, and that an oral hearing is not mandatory in every case. Consequently, the writ petition was dismissed, with liberty to the petitioner to avail the appellate remedy under Section 18 of the POSH Act, and with a direction that the time spent prosecuting the writ petition be accounted for in computing limitation, if an appeal were to be filed.

Representation by a legal practitioner before a Labour Court is permissible under Section 36(4) of the ID Act where consent of the opposite party is implied and leave of the Court can be inferred from the conduct of proceedings; a preliminary objection once waived cannot subsequently be revived to debar legal representation.

Alembic Pharmaceuticals Ltd. v. Jay Prakash Singh, 2025 SCC OnLine Jhar 3607

The writ petition was filed by the employer challenging an order of the Labour Court, whereby the employer’s advocate was debarred from representing it in an industrial dispute arising out of the respondent-workman’s challenge to his removal from service under the ID Act. The debarment order was passed on the basis of a preliminary objection filed by the workman under the ID Act, contending that the management could not be represented through a legal practitioner.

The petitioner-management contended that although a preliminary objection had been filed by the workman at an early stage, the workman subsequently appeared through an advocate himself on a later date, thereby waiving the objection and giving implied consent to legal representation. It was further contended that the Labour Court had granted implied leave by permitting the management’s advocate to appear, accept the Vakalatnama, and allow an adjournment application without recording any objection. The respondent-workman opposed the petition, asserting that the recording of his appearance through counsel was erroneous and that there was neither consent nor leave as required under Section 36 of the ID Act.

The Jharkhand High Court held that Section 36 of the ID Act does not impose an absolute bar on representation by legal practitioners before Labour Courts, and that such representation is permissible with the consent of the opposite party and the leave of the Court. The Court reiterated that consent may be express or implied, and consent may be inferred from the conduct of the Labour Court in permitting appearance and passing orders on applications filed by counsel. On facts, the Court found that the workman’s own appearance through an advocate amounted to waiver of the earlier objection and constituted implied consent, and that the Labour Court had granted implied leave by allowing the management’s advocate to participate in proceedings.

The subsequent attempt to revive the objection was deemed untenable. Accordingly, the order debarring the petitioner’s advocate was set aside.

The Bangalore Hotels Association and the Management of Avirata AFL Connectivity Systems Ltd challenged a notification dated November 12, 2025 issued by the Government of Karnataka which mandated one day of paid menstrual leave per month for women employees working in factories, plantations, shops, and commercial establishments.

While the Karnataka High Court initially stayed the operation of the notification, observing that the creation of a substantive right entailing financial liability upon employers requires legislative enactment by way of an amendment, and cannot be introduced solely through an executive order, the High Court lifted the interim stay. Accordingly the impugned notification remains in force pending the final adjudication of the writ petition. The matter is listed for further hearing on January 20, 2026.

Employees of exempted establishments who were in service as on September 1, 2014, cannot be denied the benefit of pension on higher wages on the sole ground that internal provident fund trust rules restrict contributions to the statutory ceiling, where such rules contain an overriding clause giving primacy to the EPF Act and the Employees’ Pension Scheme, 1995 (“EPS”)

Subhas Chandra Mallik & Ors. v. Union of India & Ors., WPA 15534 of 2025

The writ petitions are filed by retired employees of various establishments, including exempted establishments under the EPF Act, including SAIL-CMO, Hindustan Cables Limited having their own provident fund trusts. The writ petition challenges rejection orders passed by the EPFO denying them pension on higher wages under the EPS.

The petitioners had all been in service as of September 1, 2014, and had exercised joint options along with their respective employers pursuant to the judgments of the Supreme Court in R.C. Gupta v. RPFC [3]  and EPFO v. Sunil Kumar B [4]  (“Sunil Kumar B”). The applications were rejected primarily on the grounds that the trust rules of the concerned establishments restricted contributions to the statutory wage ceiling, i.e. INR 6,500 per month.

The petitioners contended that the rejection orders were arbitrary and contrary to the statutory scheme, particularly since the trust rules themselves contained overriding clauses expressly providing that the provisions of the EPF Act and the schemes thereunder would prevail in the event of any inconsistency. It was further contended that the judgment of the Supreme Court in Sunil Kumar B. [5]  does not envisage the denial of a higher pension on the basis of internal trust rules, and that the EPFO could not introduce such a restriction outside the statutory framework. The EPFO, on the other hand, justified the rejections by relying on limiting clauses in the trust rules and contended that contributions for higher wages were impermissible in exempted establishments, where such rules restricted contributions to the ceiling.

The Calcutta High Court held that the impugned rejection orders were unsustainable in cases where the trust rules themselves contained overriding provisions giving primacy to the statutory schemes. The Court held that employees of exempted establishments could not be placed in a disadvantageous position vis-à-vis employees of unexempted establishments for the purpose of pension under the EPS, as this would lead to artificial classification of otherwise the same categories of employees (as held by the Supreme Court in Sunil Kumar B [6] ). It was further held that internal trust rules cannot override statutory provisions or binding judgments of the Supreme Court, and that denial of consideration of joint options for higher pension solely on the basis of such trust rules was arbitrary. Accordingly, the Court set aside the impugned rejection orders and directed the EPFO to process and decide the joint option applications for higher pension in accordance with law and the judgments of the Supreme Court.

Termination of an employee solely on the ground of being HIV-positive is impermissible in the absence of compliance with  the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 (“HIV Act”), and such an employee is entitled to protection against discrimination and to reasonable accommodation under the HIV Act and RPWD Act.

ABC v. Border Security Force & Ors., W.P.(C) 3616 of 2021.

The writ petition was filed by a Constable (GD) appointed in the Border Security Force who was discharged from service on the ground of medical unfitness after being diagnosed as HIV. A show-cause notice was issued proposing his retirement from service, and despite his response, his services were terminated by order dated April 9, 2019. The statutory appeal against the said order was also rejected, leading to the writ petition seeking reinstatement.

The petitioner contended that his discharge amounted to discrimination prohibited under Section 3(a) of the HIV Act, as he was neither furnished with a written assessment by a qualified and independent healthcare provider establishing significant risk or unfitness, nor with a written statement setting out any administrative or financial hardship in providing reasonable accommodation.

The Delhi High Court held that Section 3 of the HIV Act places a statutory bar on termination from employment on the ground of HIV status unless the mandatory preconditions under Section 3 of the HIV Act are strictly complied with. The Court held that failure to comply with these requirements attracts the statutory presumption that the employee poses no significant risk and that no undue administrative or financial hardship exists. As there was complete non-compliance with Section 3(a), the discharge of the petitioner was held to be contrary to the HIV Act.

The Court further held that an HIV-positive employee suffers from long-term physical impairment which hinders full and effective participation in society and therefore falls within the definition of a “person with disability” under Section 2(s) of the RPWD Act, thus mandating the provision of reasonable accommodation by employers. The Court held that the petitioner could not have been discharged solely on the ground of being HIV-positive and that if he was unsuitable for the original post, he was entitled to be adjusted against an alternate or supernumerary post. Accordingly, the impugned orders were quashed, and the petitioner was directed to be reinstated with continuity of service and consequential benefits, though without back wages.

Where termination of a contractual employee is founded solely upon pendency of a criminal case and subsequent judicial custody, and the employee is acquitted by a competent criminal court, the very basis of termination ceases to exist, rendering such termination unsustainable in law.

The State of Rajasthan v. Smt. Manju Berwa (D.B. Spl. Appl. Writ No. 1281/2025)

The respondent, Smt. Manju Berwa was engaged as a Multi-Purpose Worker under the administrative control of the appellant, the Department of Medical & Health, Bhilwara. While serving in such a capacity, an FIR No. 302/2002 was registered against her for offences punishable under Sections 420, 467, 468, 471, 384, and 120-B of the IPC, allegedly arising out of a family dispute. The respondent was remanded to judicial custody. While she was subsequently released on bail, she was denied permission to resume the work by the appellant. Subsequently, her services were terminated on the grounds that she had remained in judicial custody in connection with the aforementioned criminal case.

Aggrieved by the termination, the respondent raised an industrial dispute, which was adjudicated by the Labour Court. During the pendency of such proceedings, she was acquitted of all charges by the competent criminal court. The Labour Court also quashed the termination order and directed reinstatement of the respondent on the same contractual terms as existing prior to termination. The State filed a writ petition against the said award before the Rajasthan High Court. The same was disposed of by the learned Single Judge of the Rajasthan High Court, upholding the Labour Court's findings. The appellant-State, in the special appeal, contended that mere acquittal in a criminal case does not automatically confer any right of reinstatement or entitle an employee to service benefits, unless the departmental termination is found to be perverse or unsupported by law. It was urged that the termination was an independent administrative action not automatically vitiated by subsequent acquittal.

The respondent-employee opposed the appeal, who submitted that since the termination was based solely on the pendency of a criminal case, and the respondent now stood acquitted, the very basis of the termination no longer survived. It was further submitted that there was no other independent material on record to sustain the termination order.

holding that once the respondent stood acquitted by a competent criminal court, the basis of such termination ceased to exist. The Court observed that the very foundation of the termination rested upon the pendency of a criminal case against the respondent, and that upon acquittal, this foundation was destroyed. The Court held that the concurrent findings recorded by both the forums below were well-reasoned, supported by the material on record warranting interference in appellate jurisdiction.