Labour Compliance

Procedure of Inquiry under POSH: An Overview

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 by providing a provision of the constitution of the Internal Committee for the redressal of complaints under sexual harassment. Still, the major issue with such redressal is the ambiguity about its inquiry procedure.

This article discusses the Procedure of Inquiry under POSH to clarify the same and provide relief to the aggrieved women at the time of inquiry.

Who Is Responsible For Inquiry Under POSH?

Conducting the inquiry under POSH falls upon the Internal Committee or the Local Committee. Section 4 of the POSH Act¹ provides that every organization employing ten or more employees must constitute an Internal Committee for the redressal of the complaints of sexual harassment.

In Global Health Private Limited & Mr. Arvinder Bagga v. Local Complaints Committee, District Indore and Others (2017), the Hon’ble Court held that a fine should be imposed under the POSH Act on the organizations for failing to constitute the Internal Committee.

Composition Of Internal Committee

The internal Committee comprises the following members –

. Presiding Officer 

The presiding officer shall be a senior-level female employee who would serve as the chairperson of the Committee.

· Employee Members 

The Committee shall also include two or more members having decent legal knowledge, experience in social work, or commitment to the cause of women.

· External Member 

The external member shall be someone not associated with the organization. The person should be from an NGO or association committed to the cause of women or familiar with issues related to sexual harassment. 

Critical Responsibilities Of The Internal Committee

The responsibilities of the Internal Committee are enlisted below

• Drafting the Sexual Harassment Policy
• Working towards providing a safe and respectful working environment
• Organizing training and awareness programs (classroom / eLearning) at regular intervals
• Conducting meetings in the event of –
• receiving a complaint in writing by the complainant 
• Settling the grievances 
• Ensuring appropriate compensation to the complainant for any case of sexual harassment or misconduct 

Disqualification Of Members Of Internal Committee

The member of the internal Committee shall be disqualified under the following circumstances-

• Disclosure of matters deemed as confidential as per laws of POSH, such as the information regarding the identity of the complainant, respondent, or witnesses, details of inquiry proceedings and recommendations of the internal Committee, action taken by the employer, or information about the harassment complaint
• Conviction or pendency of inquiry for any offense under any law
• Continuance of disciplinary proceedings against any actions in the workplace
• Abuse of position as an internal committee member

In the circumstances mentioned above, the Committee must appoint a new member as a replacement.

Legal implications regarding the improper formation of the Internal Committee

The POSH Act has stringent provisions regarding the constitution of the internal Committee, and an organization 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 organization 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 concerning the constitution of the Committee or the inquiry procedure, the complaint may be assigned to a competent authority, such as the Local Committee, regarding the continuance of inquiry under the POSH Act.

Penalties for Improper Formation of Internal Committee

The penalties for the improper formation of the internal Committee are –

• Fine extending to Rs. 50,000
• Double penalty in cases of repeat offences
• Cancellation or non-renewal of business

Ruchika Singh Chhabra v. Air France India and Anr (2018 LLR 697)  

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.

K. HemaLatha v. The State of Tamil Nadu and Others (2018 LLR 447) 

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 because the Committee was not constituted as per the provisions of the POSH Act. The institution was directed to constitute the Committee in accordance with the Act and submit the report after hearing from the relevant parties again.

What Is The Procedure Of Inquiry Under POSH?

The procedure for inquiry under POSH can be divided into three segments, namely –

• Pre-Inquiry Procedure
• Inquiry Proceedings
• Post Inquiry Procedure

Pre-Inquiry Procedure

The pre-inquiry procedure comprises the following steps-

1. Determination of the allegation of Sexual Harassment  

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 –

• If the respondent displayed potentially offensive and/or improper conduct, which might come within workplace sexual harassment.
• The behaviour was explicitly directed at the complainant.
• The complainant experienced harm.
• The behaviour occurred at the workplace.
• If the complaint is submitted within the prescribed period of 3 months from the occurrence of the last incidence

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 cognizance of the complaint within seven days only if the complaint were 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 ten days of the receipt of the same.

ii. Interim Relief 

The internal Committee may pass an interim relief order 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 to safeguard the aggrieved women from further suffering.

iii. Conciliation 

According to section 10 of the said Act, the internal Committee would initiate the conciliation proceedings only after the complainant’s request. It must be noted that the conciliation must not involve any monetary settlement between the parties. Further, the conciliation proceedings must not be initiated at the discretion of any party except the complainant. The internal Committee must ensure that the complainant is not pressured 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 must be sent to both parties, i.e., the complainant and the respondents.

iv. Inquiry Proceedings  

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-

• In case the respondent is an employee of the organization, proceedings will be initiated and handled by the internal Committee; otherwise, such as in the case of a domestic worker, the complaint would be forwarded to the police within seven days for registering the case under Section 509 of IPC 1860 and any other relevant provision.
• The internal Committee or the police can initiate the inquiry if it is brought to the notice of the Committee by the complainant about the non-compliance of any terms or conditions of the settlement of the conciliation proceedings.
• Further, if both parties are the organization’s employees, a chance to be heard would be provided to both parties. The findings of the same shall be made available to both parties so that they can make an able representation of their case before the Internal Committee.
• However, the Committee has the power to terminate the proceedings or pass an ex-parte order in the event of the non-appearance of either of the parties without sufficient cause for three consecutive hearings only after providing notice to the parties in this regard at least 15 days advance notice to the concerned parties.
• In the event of the respondent’s conviction for the alleged offence, the internal Committee has passed an order to pay such sums as deemed fit by the aggrieved women as per the provisions of section 15 of the POSH Act.
• To conduct the inquiry, the Internal Committee shall be vested with the same powers of a civil court that are –
• Serving summons and enforcing the attendance of any person for his examination under oath. 
• Discovery and production of documents
• Any other matter which might be prescribed

• The inquiry should be finalized within 90 days
• None of the parties must be allowed to bring a legal practitioner for their representation at any proceeding stage.

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. the University of Delhi, The Delhi court discussed ways to conduct cross-examination. It emphasized that the inquiry should be conducted according to the principles of natural justice.

Post Inquiry Procedure

This procedure must be followed after the completion of the inquiry proceedings by the internal Committee through the following steps –

i. Preparation of Report 

The report must be prepared by the internal Committee considering the following points –

• Identification of the admitted and disputed facts
• Assessment of the evidence
• Comments on any underlying factors which might have contributed to the incident
• Comparison between the similarities and differences between the statements made by the parties.

ii.  Submission of Report 

The report must be submitted to the District officer within ten 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 proven, it shall recommend that the employer avoid taking action against the respondent.

Otherwise, it may recommend the employer or the district officer, as the case may take any actions such as –

• Considering the sexual harassment as misconduct on the part of the respondent as per the provision of the prescribed service rules of the organization.
• Deducting the salary or wages of the employee to pay such sum of compensation to the woman or her legal heirs as per the provisions of section 15 of the Act
• However, in case of the inability of the employer to deduct the salary due to the employee being absent from duty or cessation of employment, the employer may direct the respondent to pay such a sum to the aggrieved woman. If the respondents fail to do the same, the internal Committee may forward the order to recover the sum as an arrear of revenue from land to the concerned District Officer.
• The employer is obligated to act on the recommendations of the internal Committee within 60 days of receipt of such recommendations.

Guidelines for an Efficient PoSH inquiry process

Establishing a welcoming environment for the parties, following a time-bound process, communicating fairly and empathically, avoiding letting personal biases affect the proceedings, maintaining the confidentiality of all proceedings, taking interim corrective measures, being consistent, and following up are just a few of the ground rules that an ICC can use to conduct an inquiry effectively. Here are some of them in more detail:

• Set up Comfortable surrounding.

The ICC must make the parties feel at ease during the investigative process to provide the most accurate account of the occurrence. The Committee and the PoSH probe procedure shouldn’t ever make the parties feel threatened.

• Follow a procedure with a deadline.

The ICC must adhere to the deadlines outlined in the Act. Any failure to comply will result in a breach of the PoSH law and a fine. As a result, it is imperative to carry out the investigative procedure promptly.

• Empathetic and unbiased communication

The vast amount of authority granted to the ICC makes it comparable to a civil court. As a result, the ICC is compelled to perform the PoSH inquiry process with respect. Their individual biases or prior assumptions shouldn’t affect the process.

• Avoid allowing personal prejudices to affect the proceedings

Avoid making assumptions about complaints. Sometimes innocent people make improper claims because they don’t understand the law or the relevant legal requirements. The ICC should refrain from drawing judgments regarding guilt or innocence before conducting a thorough investigation into an accusation.

• Maintain the secrecy of all communications.

Be careful about the accusations, the names of the complainant and accused, and the focus of the inquiry, and keep all case specifics private.

Conclusion

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.

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