Q. How do I ensure the # POSH Internal Committee (IC) constituted under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) is fair and unbiased?
Q: Can a director be a part of the #POSH IC?
Even though it is more than 5 years since the POSH Act, came into effect, some of these questions still remain unanswered for several organisations.
Legal Position and best practices:
Every Internal Complaints Committee (IC) that is constituted must be done in accordance with the provisions of Section 4 (2) of the Act, which states that the IC must consist of:
- A Presiding Officer, who shall be a woman employed at a senior level at workplace from amongst the employees;
- Not less than Two Members from amongst the employees preferably committed to the cause of women or who have experience in social work or have legal knowledge; and
- One Member, who will be an External- Member from amongst non-governmental organisations or associations committed to the cause of woman or a person familiar with the issues relating to sexual harassment.
Several courts have stressed on the importance of adhering to the requirements specified under the Act with respect to the constitution of the IC and have held as follows;
Linda Eastwood vs. Union of India & Anr. W.P.(CRL.) 1904/2013, in the High Court of New Delhi
This case was indeed peculiar. The petitioner filed a case against one Mr. Singh of Bridge and Roof Co (India) Limited before the internal complaints committee on a matter related to sexual harassment. The internal complaints committee of the company, conducted an inquiry and came to the conclusion that there was a prima facie case of sexual harassment. During further inquiry, Mr. Singh did not cooperate in the matter and an ex parte order came to be signed by only the chairperson, holding Mr. Singh guilty of harassment, recommendations were sent to the appropriate authority to take action as well. In the meantime Mr. Singh took additional charge as CMD of the Company, and in doing so he reconstituted the IC, choosing people who were favourable to him. The external member was the same as the 1st IC but had remained absent when the ex parte order was passed. Two new members of the second IC were people who were the witnesses of Mr. Singh and another member was also a member in the 1st IC but chose to remain absent the day the ex parte order was passed. This reconstituted committee exonerated Mr. Singh from all charges of harassment.
Amongst several other reliefs given under the above judgment, the court held the second IC report and the constitution of the second IC as bad in law and held that:
- The second IC came into existence when the first IC had already given its report to the ministry;
- Witnesses under the earlier inquiry cannot be made IC members;
- Intention of external counsel who remained absent in the earlier proceedings and not in the second one was questionable.
Ruchika Singh Chhabra v. Air France India and Another (2018 LLR 697), in the High Court of Delhi:
In the case on hand, the High Court of Delhi set aside the inquiry report because there was no clarity given to the complainant. In this case there was nothing on record in the facts to show that the external member had experience in dealing with women related issues or sexual harassment issues. The court opined as follows: “The objective behind the requirement of a member from non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment in the Workplace Harassment Prohibition Act is to prevent the possibility of any undue pressure or influence from senior levels”.
In this case the writ petitioner (aggrieved woman) had filed a case of sexual harassment against the dean of the medical college. The IC was constituted by the dean and all the members, other than the external member were under the direct supervision and control of the dean against whom the complaint was made by the writ petitioner. The court held that, when the majority of six out of seven members in the committee are subordinates of the dean of the institution, who issued the order to constitute a committee, then, there will be a reasonable apprehension that the inquiry may be vitiated. Thus, the Court directed the petitioner in WP. No.30131 of 2017, to appoint an independent committee as contemplated under Section 4 of the Act, so as to conduct an impartial, fair and free enquiry in to the allegations made by the writ petitioner/first respondent in her complaint.
From a brief reading of the relevant sections and the important case laws stated above, it is very clearly seen the IC constituted under the Act:
- Has to be fair and unbiased in following due procedure prescribed under the POSH Act;
- In case of a conflict with the complainant, and or the respondent, a member of the IC has to step down as a committee member;
- Members of the IC have should not be influenced by any undue pressure from the management;
- Has to at all times to follow the principles of natural justice
The employer, who under the Act, is required to constitute the IC, should chose employees with integrity and employees who believe in the cause they have been appointed for. Once the IC members are appointed, the employer should take the back seat. Except for ensuring a conducive atmosphere and providing the IC with their requirements as needed under law, the employer should not interfere in the inquiry process. Once the order is passed by the IC, the employer should enforce the terms of the inquiry report in letter and spirit.
The employer as much as possible must ensure that he/she is not on the IC as a member, this is because the provisions of the POSH Act make it very clear that appointment of the IC and taking action on the IC report vests with the employer and both of these actions need to be independent acts.