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Sexual Harassment at workplaces is a predominant concern in India, and such harassment is not only a sheer violation of the fundamental rights of women but adversely affects their physical and mental health. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Compliance) was enacted to address this issue through providing a provision of the constitution of the Internal committee for the redressal of complaints under sexual harassment, but the major issue with such redressal is the ambiguity about its inquiry procedure.
This article discusses the Procedure of Inquiry under POSH to provide clarity about the same and provide relief to the aggrieved women at the time of inquiry.
The responsibility of conducting the inquiry under POSH falls upon the Internal Committee or the Local Committee. Section 4 of the POSH Act provides that every organisation employing ten or more employees must constitute an Internal Committee for the redressal of the complaints of sexual harassment.
In the matter of Global Health Private Limited & Mr Arvinder Bagga v. Local Complaints Committee, District Indore and Others (2017), the Hon’ble court held that there should be a fine imposed under the POSH Act on the organisations for failing to constitute the Internal Committee.
The internal committee comprises the following members –
The presiding officer shall be a senior-level female employee who would serve as the chairperson of the committee.
The committee shall also include two or more members having decent legal knowledge, experience in social work or commitment to the cause of women.
The external member shall be the person who is not associated with the organisation. The person should be from an NGO or association committed to the cause of women or familiar with issues related to sexual harassment.
The responsibilities of the Internal Committee are enlisted below
The member of the internal committee shall be disqualified under the following circumstances-
In the circumstances mentioned above, the committee will be obligated to appoint a new member as a replacement.
The POSH Act has stringent provisions regarding the constitution of the internal committee, and an organisation would be compelled to bear dire consequences for the improper formation of the same.
The legal implications for the improper formation can lead to the dissolution of the internal committee by the court, followed by the direction to the organisation for the reinstitution of the committee with strict compliance with the POSH Act, implying that the complaints would undergo a fresh inquiry by the newly formed Internal Committee.
In case of business with regard to the constitution of the committee or the inquiry procedure, the complaint may be assigned to a competent authority such as the Local committee in respect of the continuance of inquiry under the POSH Act.
The penalties for the improper formation of the internal Committee are –
Upon finding that the external member didn’t possess the relevant qualification for the position, the High Court of Delhi invalidated the internal committee’s constitution, set aside the committee’s proceedings, and further directed to reconstitute a new committee and begin the inquiry afresh.
The High court of Madras rejected the report of the internal committee of an educational institution that comprised only the members of the administrative department on the grounds that the committee was not constituted as per the provisions of the POSH Act. The institution was directed to constitute the committee in consonance with the Act and submit the report after hearing from the relevant parties again.
The procedure for inquiry under POSH can be divided into 3 segments, namely –
The pre-inquiry procedure comprises the following steps-
The first step in the pre-inquiry procedure is prescribed u/s 9 of the POSH Act, i.e. ascertaining whether there was an occurrence of sexual harassment as alleged by the complainant. The following pointer must be considered for ascertaining the same –
The criteria mentioned above were provided in the case titled Shri Debdulal Maity vs National Insurance Co. Ltd. & Ors, WP No.728 of 2014
The internal committee would take cognisance of the complaint within 7 days only if the complaint was submitted within the prescribed time frame of 3 months and supplying a copy of the same to the Respondent, the respondent is obligated to submit the explanation regarding the complaint with 10 days of the receipt of the same.
The internal committee may pass an order of interim relief if necessary, even before initiating the inquiry under POSH at the complainant’s request. For instance, the temporary relief may include an order for a change of department, long leaves, transfer or change of workplace; such orders are passed with the intention of safeguarding the aggrieved women from further suffering.
According to section 10 of the said Act, the conciliation proceedings would be initiated by the internal committee only after the request of the complainant. It must be noted that the conciliation must not involve any monetary settlement between the parties. Further, the conciliation proceedings must not be initiated by the discretion of any party except the complainant. The internal committee must ensure that the complainant is not pressurised in any manner. Also, none of the parties should abuse the option of conciliation.
The statement and details of the conciliation should be recorded by the internal committee and forwarded to the employer for necessary compliance. The copies of the same must be sent to both parties, i.e. the complainant and the respondents, accordingly.
If the matter is not settled through conciliation, the internal committee shall proceed with initiating the inquiry under POSH as per the procedure prescribed under section 11 of the POSH Act 2013, which is elaborated below-
It is necessary to conduct inquiry proceedings per the principles of natural justice. In the case of Prof. Bidyut Chakraborty Vs Delhi University and others (WP 8226/2007), the Delhi High Court set aside the inquiry committee’s decision on the gross violation of principles of natural justice.
In a different matter, Ashok Kumar Singh Vs University of Delhi, The Delhi court discussed ways to conduct cross-examination. It emphasised that the inquiry should be conducted according to the principles of natural justice.
This procedure must be followed after the completion of the inquiry proceedings by the internal committee through the following steps –
The report must be prepared by the internal committee considering the following points –
The report must be submitted to the District officer within 10 days of the inquiry’s completion and made available to the concerned parties.
If the internal committee opines that the allegations against the respondents haven’t been proved, it shall recommend that the employer avoid taking any action against the respondent.
Otherwise, it may recommend the employer or the district officer, as the case may take any actions such as –
The above discussion helps to conclude that a well-executed procedure of Inquiry under POSH can speed up the redressal process and provide justice to the aggrieved women at the earliest. This requires the employer and the other relevant parties to have a thorough knowledge of the inquiry process, which can be attained by consulting a professional with expertise in this regard.
Read our Article: Compliance under POSH for Early-Stage Businesses