Inquiries under the POSH Act: Powers, Responsibilities, and Ramifications

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) is a comprehensive legislation intended to provide an adequate and effective mechanism for the redressal of complaints of sexual harassment of women at the workplace. The POSH Act imposes an obligation on all employers, whether public or private sector organisations/ institutions/ corporations/ associations to set up an Internal Complaints Committee (“Internal Committee”) if the employer engages ten or more workers in the workplace [Section 6, POSH Act]. Where the offices of the workplace are located in different locations, then a separate Internal Committee is to be constituted at each such location. In the event that the employer engages less than ten workers and therefore, has not constituted an Internal Committee, or if the complaint of sexual harassment is against the employer [Section 2(g), POSH Act], an aggrieved woman may approach the Local Complaints Committee (“Local Committee”) constituted by the District Officer (usually, the District Magistrate or Additional District Magistrate or the Collector or Deputy Collector).

The Internal Committee or the Local Committee (as the case may be) envisaged under the POSH Act, is responsible for receiving complaints of sexual harassment at the workplace, inquiring into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed. The bodies while undertaking any such inquiry are empowered to summon and examine witnesses and require the discovery and production of documents. Prior to the initiation of an inquiry, the parties may also settle the issues through conciliation upon the written request of the complainant [Section 10, POSH Act]. Post completion of the inquiry, the Internal Committee or the Local Committee, as the case may be, is to provide a report of its findings to the employer, or as the case may be, the District Officer.

If the Internal Committee arrives at a conclusion that misconduct in the nature of sexual harassment at the workplace has been proved, it recommends to the employer that action may be taken against the respondent subject to the seriousness of the allegations including a written apology, withholding of promotion/ pay raise or increments, termination from service, and counseling. In addition, the Internal Committee may also recommend to the employer that monetary compensation be paid by the respondent to the complainant, which may be deducted from his salary or wages. This article highlights the importance of inquiries conducted by the Internal Committee not only from an organizational perspective but also from the standpoint of related legal proceedings on the subject matter and its far-reaching ramifications. We have also suggested some important practices that an organization may consider adopting to preserve the sanctity of the enquiry process and ensure compliance with the law.

The constitution, inquiry, and findings of an Internal Committee in today’s workplaces have garnered significant importance in dealing with complaints of harassment and in an attempt to ensure a safe environment for women. Conversely, these reports also play a significant role as evidence in criminal proceedings or in some cases, even the setting aside of such criminal proceedings and complaints filed before the National Commission for Women that may have been initiated against the respondent at the behest of the complainant, in parallel or post facto. Such reports also garner relevance in proceedings for wrongful termination, reinstatement and/ or damages that may be filed at the behest of the party aggrieved by the findings of the Internal Committee. In fact, the emerging judicial trend is the quashing of proceedings arising out of an identical criminal complaint if it is concluded by the Internal Committee that the complaint of sexual harassment filed before it against a respondent is false or that a case of sexual harassment is not made out.

For instance, the Hon’ble Karnataka High Court in Usha Padmini v State of Karnataka and Others, quashed criminal proceedings initiated against the accused person while holding that if an Internal Committee conducts a proper inquiry into the allegations of sexual harassment and finds no truth or substance in the allegations, the prosecution initiated against the accused on the same set of evidence would be unjust and an abuse of the process of the Court.

Similarly, the Hon’ble High Court of Delhi in the case of Ashish Chauhan v State (Government of NCT of Delhi) and Another and Surajit Chatterjee v State and Another (“Ashish Chauhan”), quashed criminal proceedings initiated against the employees of a multinational company based upon the report of the Internal Committee, which exonerated the employees from such allegations. The court, in the aforementioned case, held that where an allegation is found to be unsustainable in duly conducted Internal Committee proceedings and an employee is held innocent, then criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases vis-à-vis departmental proceedings.

This principle of law is in itself not novel and can be traced back to the case of PS Rajya v State of Bihar, (“PS Rajya"), where the Hon’ble Supreme Court rejected the stance that the departmental proceedings and report of the Central Vigilance Commission exonerating the appellant of the same charged would not conclude a criminal case against the concerned accused. The ratio of PS Rajya was further expanded in Radheshyam Kejriwal v State of West Bengal and Another, where the Hon’ble Supreme Court observed that it was trite that the standard of proof required in criminal proceedings is higher than that required before the adjudicating authority. Thereafter, in Ashoo Surendranath Tewari v CBI and Another, the question before the Hon’ble Supreme Court was whether the prosecution of an accused on the same set of facts can be allowed or not in case the accused is exonerated before the adjudicating authority, and it was held that the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the POSH Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court.

In view of the above position of law, the Hon’ble Delhi High Court in Ashish Chauhan relied on the report and findings of the Internal Committee where statements of more than twenty witnesses were recorded and the issues in the proceedings conducted by the Internal Committee were identical to that in the criminal prosecution given that the FIR was filed at the behest of the complainant was treated as the complaint before the Internal Committee. The Hon’ble Delhi High Court also observed that the provisions of the POSH Act had duly been complied including in conduction of the inquiry. In these circumstances, the Court found force in the arguments advanced by the Petitioners that prosecution arising out of the FIR could not be continued particularly, when the Petitioners were exonerated by the Internal Committee.

In the circumstance of the emerging judicial trend, it has become increasingly evident that the courts are subscribing significant importance to the role of the Internal Committee and its findings. As a corollary, it is imperative for organisations to ensure that the Internal Committee is constituted as per law and acts independently, reasonably, fairly, and in accordance with the principles of natural justice while conducting inquiries into the complaints of sexual harassment at the workplace. The findings of the Internal Committee can have a draconian reputational and financial impact not only on the complainant and the respondent but also on the reputation of the employer/organization if there are lapses in the way that such a complaint is handled, apart from compliance issues. For example, the Hon’ble Kerala High Court in Dr TV Ramakrishnan v. Kannur University set aside the findings of the Internal Committee and recommendation to terminate the accused, since the Internal Committee had proceeded in gross violation of the principles of natural justice that are inherent to any departmental inquiry by failing to provide a copy of the complaint filed against him or furnish a copy of its findings to the respondent. In another case, the Hon’ble High Court of Madhya Pradesh (Indore Bench) in Global Health Private Limited and Mrs Arvinder Bagga v. Local Complaints Committee, District Indore and Others, imposed a fine of ₹50,000 on a hospital establishment for failing to constitute an Internal Committee and directed payment of ₹2,50,000 to the complainant who had to suffer on such account.

In this context, we have suggested an indicative list of best practices that an organisation may consider for ensuring that the Internal Committee imparts its functions in an efficient, effective, impartial, and transparent manner:

(a) Firstly, the organisation should ensure that they have a comprehensive policy, in place, on prevention, prohibition and redressal of sexual harassment at the workplace that deals with (a) the functioning of Internal Committee; (b) the role and responsibilities of its members; (c) the mechanism of handling the complaint by Internal Committee; and (d) the timeline for redressal of the complaint.

(b) In order to mitigate any possibility of arbitrariness and lack of transparency, the organisations should ensure that there is a presence of an external member in Internal Committee, who is objective, unbiased, and shielded from any pecuniary association with the organisation.

(c) If any member, including the presiding officer of Internal Committee, has any personal interest in the matter, he or she should not be involved in that matter and the complainant should be heard by the remaining members of Internal Committee (in accordance with Rule 7(7) of the Sexual Harassment of Women at Workplace Rules, 2013 (“POSH Rules”) which prescribes that a minimum of three members including the presiding officer must hear a matter).

(d) Regular workshops to ensure that the members of Internal Committee receive appropriate training to comply with the procedure contemplated under the POSH Act and Rules and the principles of natural justice are complied with while conducting inquiries into the complaints of sexual harassment at the workplace. For example:

i. Upon receipt of the complaint, one copy of the same shall be sent to the respondent (within seven working days) [Rule 7(2), POSH Rules];

ii. The respondent shall be given the right to file his reply in writing along with the list of documents that the respondent seeks to rely upon (within ten working days) [Rule 7(3), POSH Rules];

iii. The complainant, as well as the respondent, should be given an opportunity to lead evidence, both documentary as well as through witness, and also to cross-examine the witness by the other party;

iv. At any time during the conduct of the inquiry, a minimum of three members of the Internal Committee must be present, which must include the Presiding Officer or the Chairperson;

v. In case, the complainant or the respondent fails to appear, without sufficient cause, for three consecutive hearings, the committee has the power to terminate the proceedings or give an ex-parte decision on the complaint. However, before passing such an order, the Internal Committee is required to give notice, in writing, fifteen days in advance to the party concerned [Rule 7(5), POSH Rules];

vi. The Internal Committee shall provide a report of its findings to the employer, which must contain the reasons on the basis of which, it has arrived at its findings and its recommendations (within ten days of the completion of the evidence) [Section 13, the POSH Act].

(e)    The POSH Act imposes an obligation upon all the persons who are involved in the proceedings to protect the identity and address of the aggrieved woman, the respondent, and the witness. Further, as per the POSH Act, there is also a complete embargo on publication, communication, or making known of information relating to the inquiry proceedings, including the action taken, to the public, press, or the media in any manner [Section 16, the POSH Act]. Accordingly, organisations should ensure that the members of the Internal Committee strictly adhere to confidentiality while conducting inquiries.

The organisations, by following the aforementioned best practices, are likely to ensure that the Internal Committee functions in an impartial and transparent manner thereby resulting in providing a safe and secure working environment for all employees.

With great powers comes great responsibility. Thus, it is imperative for employers to ensure that Internal Committee is constituted in compliance with the POSH Act in letter and spirit today more than ever. It is important that genuine complaints are dealt with appropriately and expeditiously to inspire confidence in the complainant in particular and to create a safe working environment for women. On the other hand, frivolous, malicious, fictitious and/ or retaliatory complaints lodged in gross abuse and misuse of the process for settling of scores or a personal agenda/ vendetta should be dealt with strictly so as to create the right discipline in the organization and deter unscrupulous complainants from initiating vexatious proceedings against individuals/ employees.

Jeevan Ballav Panda is a Partner, Meher Tandon is a Senior Associate and Dhriti Mehta is an Associate at Khaitan & Co.

Views expressed in this article are strictly personal and do not constitute legal/ professional advice of Khaitan & Co.