All you need to know about POSH Act

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All you need to know about POSH Act

Redressal Process

Conciliation

After submitting the complaint, complainant can request the LC/IC to settle the matter through conciliation. The IC/LC will communicate the complainant’s desire for conciliation to the respondent. If the respondent agrees for conciliation, the IC/LC can initiate for conciliation. The features of conciliation are:

  • The IC must document the settlement and share the copy of the report with the employer, complainant and the respondent.
  • Monetary settlement should not be the basis for conciliation.
  • Once a complaint is settled via conciliation, no inquiry will be initiated on the same.

What should the IC do if the respondent is from another organization or a third-party?

If the respondent is an employee of other organization, the IC will forward the complaint to the IC of the respondent’s organization and in case of a third-party, IC will help the complainant in filing a police complaint.


Inquiry

The IC/LC will initiate inquiry into the complaint if:

  • The complainant did not request for conciliation.
  • The aggrieved woman informs the IC/LC that the respondent did not comply to any of the terms or conditions arrived at during conciliation or
  • The respondent does not agree for conciliation.

Inquiry Process

  • The complainant will submit six copies of written complaint with supporting documents and names and addresses of the witness.
  • IC/LC will send one copy of the complaint to the respondent within 7 working days.
  • The respondent will submit his/her response to the IC/LC with supporting documents and list of witnesses within 10 working days.
  • The IC/LC will begin the inquiry and finish it within 90 days. Every hearing of the inquiry will have a minimum of three IC/LC members including the Presiding Officer of IC or Chairperson of LC. The Committee will also ensure to follow the principles of natural justice during inquiry.
  • If the complainant or the respondent does not appear for three consecutive hearings without a valid reason, the IC/LC can terminate the inquiry and pass an order ex-parte (without hearing to both the sides completely). Before terminating the complaint in such a manner, the IC/LC will give a notice of fifteen days to the parties.
  • It is to be noted that neither of the parties can bring their lawyers to represent them in the inquiry conducted by the LC/IC.

Timelines to be followed during Inquiry

IC/LC have the powers of Civil Court

For the purpose of conducting inquiry, IC/LC is vested with the powers of the Civil Court. Section 11 (3) of the POSH Act states: “For the purpose of making an inquiry under sub-section (1), the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely:—

  • summoning and enforcing the attendance of any person and examining him on oath;
  • requiring the discovery and production of documents; and
  • any other matter which may be prescribed.

Interim Reliefs for the Aggrieved under POSH Act

If the aggrieved experiences any difficulty or discomfort when the case is under inquiry, she can inform this to the IC/LC. The IC/LC will recommend the employer to provide any of the following interim relief:

  • Transfer the aggrieved woman or the respondent to any other location;
  • Grant leave to the aggrieved woman up to a period of three months (this leave is in addition to the leave she is already entitled to)
  • Restrain the respondent from reporting on the work performances of the aggrieved woman or writing her confidential report, and assign the same to another officer.
  • In case of an educational institution, restrain the respondent from supervising any academic activity of the aggrieved woman.

Conducting Inquiries in the New Normal

Conducting inquiries when the employees are working remotely, posts several challenges. Example:virtual meetings, collection of evidence, maintaining confidentiality. We have put together a comprehensive guide to this which can be accessed here.


Inquiry Report by the Internal Committee

Section 13 (1) of the POSH Act states “On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties.”

Drafting the Inquiry Report

Drafting an inquiry report is one of the most important tasks carried out by the Internal Committee. While drafting an inquiry report, Internal Committee should keep the following things in mind:

  • All documents submitted by both parties and witnesses to substantiate their respective claims should be brought on record.
  • All the oral testimonies of the complainant, respondent, and witnesses should be brought on record.
  • Collection of evidence and their analysis should be documented.
  • Details of circumstantial evidence (if applicable) should be documented.
  • All the timeline of events should be documented as clearly as possible.

What should the Inquiry Report contain?

1. Title Page

The title page of the inquiry report can have the following details:

  • Names of the parties.
  • Designations of the parties.
  • Details of their reporting managers.
  • Parties’ tenure in the organization.
  • Names and the designations of the Internal Committee (IC) members.
  • Date of receipt of complaint.
  • Date on which the complaint was shared with the respondent.
  • Date of submission of inquiry report.
  • Case number and other reference number (Example: FIR number in case of a police complaint).

2. Inquiry Details

This section should capture all the essential details of the case. Care should be taken to document everything in detail. This section should include the following:

  • Exact nature of the allegation.
  • Details of the complaint (time, place, related documents etc.)
  • Applicability of POSH Act for the complaint.
  • Details of how the Internal Committee (IC) received the complaint.
  • Details of people contacted by the complainant before and after the complaint was filed with the IC.
  • Details of the respondent’s reply.
  • Details of the witnesses and their statements.
  • Details of Evidence collected (documents, mails, chats, timestamps etc.)
  • Details of circumstantial evidence (if any).
  • Details of other employees who are aware or involved in the case.

3. Inquiry Meetings

During inquiry, the Internal Committee (IC) will hold several meetings with the complainant, respondent, witnesses and among themselves. This section will capture the details of the inquiry meetings like:

  • Inquiry Meeting number (Example: Inquiry Meeting 1).
  • Date and time of the meeting.
  • Attendees.
  • Details of examination and cross-examination.
  • Details of the discussion (if the meeting was between the IC members).
  • General Observations (Example: rude or intimidating behavior by the complainant or respondent).
  • Meeting Summary.

4. Conciliation

If the complainant requested for conciliation, the details of the conciliation procedure should be clearly documented in this section. It is important to add a declaration that there was no monetary settlement as part of the Conciliation process. If the complainant did not request for conciliation, the same can be mentioned in this section.

5. Findings & Conclusion

This section is very important as it captures the findings of the entire inquiry. If either of the two parties go to court for an appeal, details provided in this section will carry lot of significance. Therefore, this should contain details of how the principles of natural justice were adhered to during the inquiry process and the reasons why the IC upheld or dismissed the allegations made by the Complainant. The reasons should be elaborated in detail.

6. Recommendations to the Employer

This section should capture the disciplinary actions recommended against the respondent. Disciplinary actions can also be recommended against the complainant if it is proved that the complainant had filed a false complaint. Details of Rehabilitation for the aggrieved should also be included in this section. If the allegation against the Respondent is not proved, the same should be mentioned in this section with a statement that no further action on this complaint is required.

7. Declaration by the IC

It is recommended for the IC to add a declaration. The declaration can contain the following points.

  • Copy of this report is sent to the complainant, respondent, and the employer.
  • The Inquiry Report will always be treated as confidential and will not be available for viewing unless required by the law.
  • The undersigned have strictly adhered to the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.
  • The IC has documented the reasons for their recommendations.
  • None of the IC members have any personal interest in the matter.

8. Signature of the IC Members

The inquiry report should end with the signatures of the Presiding Officer, IC Members and External Member.

Recommendations by the IC to the Employer

If the respondent is found guilty

If the allegation against the respondent is proved, the IC can recommend actions against the respondent. The IC should keep the following in mind when writing the recommendations.

  • Severity of the misconduct.
  • Respondent’s past track record.
  • Designation and stature of the respondent.
  • Impact of the recommended action on the respondent and the organization.

As per the POSH Act, IC has the powers of a civil court and it can award punishments mentioned in the service rules of the organization. If no service rules exist, based on the severity of the offence, IC can make recommendations like:

  • Written apology
  • Warning
  • Reprimand/Censure
  • Withholding of promotion or pay rise
  • Deduction of compensation payable to the aggrieved woman from the salary of the respondent
  • Termination
  • Community service or counseling

If the complainant is found guilty of filing a False Complaint

Filing a false complaint is punishable according to the POSH Act. If it is proved that the complainant has filed a complaint with malicious intent, or with the knowledge that the complaint is false, the IC can recommend action against the complainant as prescribed in the service rules of the organization. If service rules do not exist, IC can then award the same recommendations listed above.

Compensation for the Aggrieved Woman

Section 15 of the POSH Act speaks about “Determination of Compensation” and provides guidelines for it. POSH Act states that:

For the purpose of determining the sums to be paid to the aggrieved woman under clause (ii) of sub-section (3) of section 13, the Internal Committee or the Local Committee, as the case may be, shall have regard to—

  • The mental trauma, pain, suffering and emotional distress caused to the aggrieved woman.
  • The loss in the career opportunity due to the incident of sexual harassment.
  • Medical expenses incurred by the victim for physical or psychiatric treatment.
  • The income and financial status of the respondent.
  • Feasibility of such payment in lump sum or in instalments

What does POSH Act say about False Complaints?

POSH Act takes a serious view about false complaints. Section 14 (1) of the POSH Act talks about false complaints and punishment for the same.

Punishment for false or malicious complaint and false evidence

Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document, it may recommend to the employer or the District Officer, as the case may be, to take action against the woman or the person who has made the complaint under sub-section (1) or sub-section (2) of section 9, … in such manner as may be prescribed:”

Lack of Evidence = False Complaint?

POSH Act makes it very clear that mere inability to substantiate a complaint or provide adequate proof will not automatically prove that the complaint was false.

Section 14(1) of the POSH Act states:

“Provided that a mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant under this section”

What are the Penalties for False Complaints?

If it is proven that a person has made false complaint, the penalties awarded should be in accordance with the service rules. In case, no such service rules exist, based on the severity of the complaint, any of the following penalties can be awarded to the guilty:

  • Written apology
  • Warning
  • Reprimand or Censure
  • Withholding of promotion
  • Withholding of pay rise or increments
  • Terminating the guilty from service
  • Undergoing a counselling session or
  • Carrying out community service

While the POSH Act allows for penalties to the complainant for filing a false complaint, there is no provision for compensation to the respondent.

You can read more about POSH Act and False Complaints here.