Action During Pendency of Inquiry (Section 12)

An inquiry into a sexual harassment complaint is not resolved overnight. Between the day a woman gathers the courage to complain and the day a finding is recorded, weeks or months may pass during which she may still be expected to share a corridor, a reporting line, or a laboratory with the very person she has accused. Section 12 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the “POSH Act”) addresses precisely this interregnum. It empowers the Internal Committee or Local Committee, on the written request of the aggrieved woman, to recommend interim relief — transfer, leave of up to three months, or other prescribed measures — so that the complaint process does not itself become a fresh ordeal. This article unpacks the text of Section 12, the reliefs prescribed under Rule 8, the contested question of action against the respondent, and the judicial gloss that has shaped how interim protection actually works in Indian workplaces.

Where Section 12 Sits in the Scheme of the Act

The POSH Act is built around a linear journey: a complaint under Section 9, an optional conciliation under Section 10, an inquiry under Section 11, and a report with recommendations under Sections 13 and 14. Section 12 is deliberately inserted between the commencement of the inquiry and its conclusion. Its marginal heading — “Action during pendency of inquiry” — tells you everything about its temporal location: it operates only while an inquiry under Section 11 is alive, neither before a complaint is taken on the file nor after the inquiry report is submitted.

This positioning matters because the Act self-consciously builds on the constitutional architecture laid down in Vishaka v. State of Rajasthan, (1997) 6 SCC 241, where the Supreme Court, invoking Articles 14, 15, 19(1)(g) and 21 and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), framed binding guidelines until Parliament legislated. One of the Vishaka directions expressly required that the complainant should not be victimised or discriminated against while a complaint was pending. Section 12 is the statutory crystallisation of that single, humane idea. For the broader statutory context, see our note on the complaint procedure and the subject hub.

The Bare Text of Section 12

Section 12 has three sub-sections. Section 12(1) provides that during the pendency of an inquiry, on a written request made by the aggrieved woman, the Internal Committee or the Local Committee, as the case may be, may recommend to the employer to — (a) transfer the aggrieved woman or the respondent to any other workplace; or (b) grant leave to the aggrieved woman up to a period of three months; or (c) grant such other relief to the aggrieved woman as may be prescribed.

Section 12(2) makes the protection genuinely additive: the leave granted to the aggrieved woman under sub-section (1) shall be in addition to the leave she would otherwise be entitled to. In other words, three months of POSH-related leave cannot be debited against her earned, casual, or medical leave balance — a critical safeguard, because otherwise the cost of complaining would fall on the complainant’s own ledger.

Section 12(3) closes the loop on enforcement: on the recommendation of the Committee being given under sub-section (1), the employer shall implement the recommendations made and send the report of such implementation to the Internal Committee or the Local Committee, as the case may be. The verb is “shall”, not “may”, so once the Committee recommends, implementation is mandatory and auditable.

The Trigger: A Written Request by the Aggrieved Woman

The single most litigated feature of Section 12(1) is its opening condition — the reliefs under clauses (a), (b) and (c) are available only “on a written request made by the aggrieved woman”. This is a deliberate design choice. The Act treats interim relief as a right of the complainant, not as something imposed upon her. A woman who fears that a transfer will derail her career, or that taking leave will be read as an admission, retains the autonomy to decline interim relief and continue working.

Two consequences flow from this. First, the Committee cannot, on its own motion under Section 12, transfer the aggrieved woman or pack her off on leave against her wishes — that would invert the protective purpose. Second, the “written request” requirement is best understood as attaching to relief that operates upon the woman herself; it does not, on a purposive reading, fetter the Committee’s ability to recommend that the respondent be moved, a point on which the High Courts have offered useful guidance discussed below. The definition of “aggrieved woman” and “respondent” that this section assumes is set out in our note on definitions.

Clause (a): Transfer of the Aggrieved Woman or the Respondent

Section 12(1)(a) is facially neutral as to direction — it permits transfer of “the aggrieved woman or the respondent”. Yet a persistent institutional reflex has been to move the complainant rather than the accused, often dressed up as being “for her own protection”. Commentators and courts increasingly characterise this as secondary victimisation: the woman who complains finds herself uprooted while the respondent stays put.

The corrective judicial trend favours displacing the respondent where separation is required. In Saikuttan O.N. v. Kerala State Electricity Board Ltd., decided by the Kerala High Court on 11 August 2020, a male employee challenged his transfer ordered while a sexual harassment complaint against him was pending. The Court declined to interfere, holding in substance that where a transfer of the respondent is effected in consonance with Section 12 as an interim protective measure, it cannot be branded as mala fide, and the writ court will not lightly disturb it. The decision is significant because it treats the transfer of the respondent as a legitimate, protective and non-punitive device, rather than as a stigmatising penalty pre-judging guilt.

The neutrality of clause (a) also means that any transfer must remain a lateral, status-preserving move: it should not visit a demotion, a cut in pay, or a downgrade upon either party, because interim relief is not a finding of liability. The inquiry that ultimately decides liability is the Section 11 inquiry, explained in our note on the complaint procedure.

Clause (b): Leave Up to Three Months

Section 12(1)(b) permits the Committee to recommend leave to the aggrieved woman for up to three months. Read with Section 12(2), this leave is over and above her ordinary leave entitlement. The figure of three months is a ceiling, not a default; the Committee may recommend a shorter period calibrated to the needs of the case, and may do so where physical separation through transfer is impractical or where the woman’s well-being makes time away from the workplace the more humane option.

Because the leave is additive and is granted on the woman’s own written request, it cannot be used punitively against her — an employer cannot, for instance, treat the period as leave without pay or as a break in service. The provision must be read consistently with the Act’s prohibition, in Section 14, against false or malicious complaints being presumed: interim relief flows from the pendency of a genuine inquiry, not from any preliminary view on merits.

The choice between transfer under clause (a) and leave under clause (b) is contextual. Leave may be the kinder option where the workplace is small and any relocation would in practice be visible to colleagues and invite gossip, or where the woman needs psychological recovery time before resuming work. Transfer, by contrast, preserves continuity of work and income while removing the daily proximity that makes the workplace intolerable. A sensitive Committee will canvass the woman’s own preference rather than impose a template, because Section 12 is structured around her agency. Where the inquiry is likely to extend beyond three months, the Committee should consider whether transfer or the Rule 8 measures offer more durable protection than the time-limited leave under clause (b), since the statutory leave ceiling cannot simply be renewed at will to outlast a protracted proceeding.

Clause (c) and Rule 8: The “Other Prescribed Relief”

Section 12(1)(c) is a deliberately open-ended residual clause — “such other relief to the aggrieved woman as may be prescribed”. The relief is fleshed out by Rule 8 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013, titled “Manner of taking action during the pendency of inquiry”.

Rule 8 empowers the Complaints Committee, at the written request of the aggrieved woman, to recommend to the employer two further protective measures. First, to restrain the respondent from reporting on the work performance of the aggrieved woman or writing her confidential report, and to assign that task to another officer. This is a powerful safeguard against retaliatory appraisals — a respondent who controls the complainant’s ACR or performance rating wields a coercive lever, and Rule 8 disarms it. Second, in the case of an educational institution, to restrain the respondent from supervising any academic activity of the aggrieved woman, so that a complaining student or research scholar is not left dependent on her alleged harasser for supervision, evaluation, or progression.

These reliefs are surgical: they sever the specific points of leverage a respondent might exploit, without requiring the dramatic step of relocating anyone. They are especially valuable where transfer is impossible — a single-campus university, a small office, a specialised laboratory — and reflect the legislative intent to keep the workplace functional while protecting the complainant.

Can the Respondent Be Suspended? The Limits of Section 12

A recurring question is whether Section 12 authorises suspension of the respondent during the inquiry. The honest answer is that Section 12 itself does not. Its enumerated reliefs — transfer, leave, and the Rule 8 measures — are directed at protecting the aggrieved woman and at separating the parties; they do not include suspension, which is a service-law consequence ordinarily anchored in the employer’s conduct rules rather than in the POSH Act.

The High Courts have navigated this gap by locating suspension in the employer’s independent disciplinary powers. In Ms. Pi v. Jawaharlal Nehru University, decided by the Delhi High Court on 29 May 2018, the Court declined to order outright suspension at the interim stage and instead crafted granular separation: complainants were to be assigned separate supervisors, the respondent was given a separate workspace, and there was to be no contact whatsoever between the parties — with suspension held in reserve only if the respondent breached those conditions. The approach mirrors Rule 8’s logic of targeted separation rather than blunt exclusion.

Where suspension has been upheld, courts have grounded it not in Section 12 but in service rules. In Ashish Kumar Das v. North Eastern Hill University, the Meghalaya High Court (larger bench, 2017) held that a respondent was not entitled to question an order of suspension passed during the pendency of the inquiry, and in State of Maharashtra v. Hiralal Rama Jadhav the Bombay High Court upheld suspension pending inquiry under the applicable service rules, declining to brand it premature. The cumulative position is clear: Section 12 protects the woman and separates the parties; suspension of the respondent, if warranted, draws its authority from disciplinary law operating alongside, not within, Section 12.

Section 12(3): The Mandatory Duty to Implement and Report

Section 12(3) converts a Committee’s recommendation into an enforceable obligation. The employer “shall implement the recommendations” and “send the report of such implementation” back to the Committee. Two features deserve emphasis. First, the language is imperative: an employer who receives a Section 12 recommendation has no residual discretion to second-guess its merits at the interim stage. Second, the closing-the-loop reporting requirement builds accountability — the Committee is not left wondering whether its recommendation was honoured.

An employer who fails to implement a recommendation exposes itself to penal consequences under Section 26 of the Act, which provides for monetary penalty and, on repeated default, cancellation of registration or licence. The reporting requirement also feeds into the annual report obligations and the broader oversight framework the Supreme Court has stressed, discussed next.

Aureliano Fernandes: Natural Justice and the Whole Inquiry Chain

Although Aureliano Fernandes v. State of Goa, 2023 INSC 460 (decided 12 May 2023 by Justices A.S. Bopanna and Hima Kohli), is principally a decision on the conduct of the inquiry rather than on interim relief, it casts a long shadow over Section 12. The case arose from a Goa University inquiry in which the Internal Committee proceeded against a Head of Department with what the Supreme Court found to be undue haste — pressing on despite his documented medical absences and ultimately recommending termination and permanent disqualification ex parte. The Bombay High Court having declined relief, the Supreme Court set aside the proceedings for violating the principles of natural justice, holding that a reasonable opportunity to be heard had been denied.

The lesson for Section 12 is one of proportion and fairness running through the entire process. Interim measures must protect the complainant without pre-judging the respondent, just as the inquiry must protect the complainant without short-circuiting the respondent’s right to be heard. The Court used the occasion to issue sweeping directions for effective POSH implementation — mandating that the Union and States verify that Internal and Local Committees are constituted, that organisations publish committee details, procedures and contact information, and that orientation and awareness programmes be conducted. These directions reinforce that the machinery in which Section 12 operates — including the Internal Complaints Committee — must actually exist and function for interim relief to be meaningful.

Medha Kotwal Lele: Committee Findings and the Pending-Inquiry Phase

Medha Kotwal Lele v. Union of India, (2013) 1 SCC 297 (decided 19 October 2012), is the bridge between the Vishaka guidelines and the 2013 Act. Through a public interest litigation monitoring compliance with Vishaka, the Supreme Court directed States and Union Territories to amend their Civil Services Conduct Rules and Industrial Employment Standing Orders so that the report of the Complaints Committee would be treated as a finding in disciplinary proceedings against the delinquent employee, and to constitute an adequate number of committees at taluka, district and State levels.

Crucially for Section 12, the Court reiterated the Vishaka safeguard that complainants must not be compelled to continue working with their alleged harassers and that any victimisation of complainants or witnesses must invite serious disciplinary action. That principle — separation pending resolution — is exactly what Section 12 now operationalises. The case also underscores that the interim phase is not a legal vacuum: even before a final finding, the institution owes the complainant a protected environment.

Who Recommends: The Internal and Local Committees

Section 12 vests the power to recommend interim relief in “the Internal Committee or the Local Committee, as the case may be”. Which body acts depends on the structure of the workplace. An establishment employing ten or more workers must constitute an Internal Committee; complaints there route through it. Where the workplace has fewer than ten workers, or where the complaint is against the employer himself, the District Officer’s Local Committee steps in.

For interim relief to be available at all, these committees must be properly constituted — a defectively composed committee may render its recommendations vulnerable to challenge. The composition requirements and the role of the presiding officer and external member are set out in our notes on the constitution of the Internal Complaints Committee and the constitution of the Local Complaints Committee. A woman in an unorganised-sector or small-establishment context relies on the Local Committee to exercise the very same Section 12 powers.

Practical Dimensions: How Interim Relief Works in Practice

For practitioners and committee members, several practical points emerge from a careful reading of Section 12. The written request should be specific — identifying which relief the woman seeks (transfer of herself or the respondent, leave, a change of reporting officer, or removal of academic supervision) — so the Committee can frame a precise recommendation. The Committee should record reasons, because while the relief is interim, it has real consequences for both parties and may be tested in a writ court, as Saikuttan O.N. shows.

The recommendation must remain non-punitive and proportionate. Suspension or workplace bans imposed as a Section 12 measure risk being struck down, because Section 12’s reliefs are protective and separative, not penal; suspension belongs to the employer’s disciplinary toolkit and must satisfy service-law standards independently. Finally, because Section 12(3) makes implementation mandatory and reportable, the Committee should set a timeline and seek the employer’s implementation report, creating a documented chain that protects the complainant and shields the institution from a Section 26 penalty.

Confidentiality is the silent companion of interim relief. Section 16 of the Act prohibits publication or disclosure of the contents of the complaint, the identity of the parties and witnesses, and the inquiry proceedings. A Section 12 recommendation must therefore be communicated and implemented discreetly — a transfer order that announces its reason, or a reassignment of appraisal duties that telegraphs the complaint, can itself breach confidentiality and re-victimise the woman. Well-drafted interim measures achieve separation without broadcasting the underlying allegation, often by routing the recommendation through the employer in neutral administrative language. The interim phase, in short, is a test of institutional maturity: it asks the employer to protect, separate and reassure, all while the substantive question of liability remains genuinely open and the dignity of both parties remains legally protected.

Common Pitfalls and Misconceptions

The first misconception is that interim relief is automatic. It is not — it flows from a written request and a considered recommendation; the woman may decline it, and the Committee must apply its mind. The second is that the default response is to move the complainant. The trend in cases such as Saikuttan O.N. and Ms. Pi is to displace or restrain the respondent where separation is needed, precisely to avoid penalising the person who came forward.

The third pitfall is treating Section 12 leave as ordinary leave — Section 12(2) forbids this; the leave is additive. The fourth is conflating interim relief with the final outcome: nothing in Section 12 turns on the merits, and the eventual finding is reached only under Sections 13 and 14 after the inquiry concludes. Understanding these distinctions keeps the interim phase humane, lawful, and resistant to challenge. Readers may also wish to revisit the foundational framing in our introduction to the Act and the substantive bar in the note on the prohibition of sexual harassment.