The Internal Complaints Committee Under Sexual Harassment At Workplace (Prevention, Prohibition & Redressal) Act, 2013

WHAT IS INTERNAL COMPLAINTS COMMITTEE?

An employer is legally compelled to adhere to specific legislative obligations under the POSH Act. One of these is the creation of an Internal Complaints Committee (“ICC”), which is tasked with receiving complaints of sexual harassment at work from aggrieved women, as well as conducting an investigation and making reasonable recommendations to the employer on the action that should be taken as a result of its investigation ICC is constituted in every organization comprising of ten or more than ten employees.

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UNDERSTANDING LEGAL TERMS

  1. Employer” is defined in Section 2 of the 2013 Act, as “in relation to any department, organization, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organization, undertaking, establishment, enterprise, institution, office etc. and also under appropriate situations person responsible for management, supervision and control of the workplace and in case of a dwelling place or house, a person or a household who employs or benefits from the employment of domestic worker, irrespective of the number, time period or type of such worker(s) employed and the nature of the employment etc.”
  2. Employee” means “a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name.”
  3. “Sexual harassment” includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:—
  • physical contact and advances; or
  • a demand or request for sexual favours; or
  • making sexually coloured remarks; or
  • showing pornography; or
  • Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

The following circumstances, may also amount to sexual harassment:—

  • implied or explicit promise of preferential treatment in her employment; or
  • implied or explicit threat of detrimental treatment in her employment ; or
  • implied or explicit threat about her present or future employment status; or
  • interference with her work or creating an intimidating or offensive or hostile work  environment for her; or
  • humiliating treatment likely to affect her health or safety

COMPOSITION OF ICC

Section 4 of the 2013 Act lays down composition of the ICC as under:

  1. The Presiding Officer, who shall be a woman employed at a senior level at workplace from amongst the employees. In order to make the ICC more approachable to women considering filing a complaint of sexual harassment, it was mandated by legislation that the ICC be chaired by a woman employed at a senior level. This was done on the theory that women would feel more comfortable with a reporting and redressal mechanism headed by a woman.
  2. Internal Member– It should have not less than two members from amongst employees who are committed to the cause of women. According to the POSH Act and Rules, it is the employer’s responsibility to schedule orientation programmes and training workshops on a regular basis to fill in the knowledge gaps of ICC members and to make sure they are better equipped to carry out their obligations.
  3. External Member – It should have one external NGO member committed to the cause of women, or familiar with the issues relating to sexual harassment.

The phrase ‘person familiar with the issues relating to sexual harassment’ has been explained in the 2013 Rules with the following deeming provisions:

  • a social worker with at least five years’ experience in the field of social work in the area of empowerment of women, and in particular sexual harassment at the workplace, or
  • a person familiar to labour, service, civil or criminal law;
  1. At least fifty-percent of the members of the ICC must be women.
  2. The members are nominated by the employer for a period up to three years from the date of their nomination as may be specified by the employer.

DISQUALIFICATION OF MEMBER OF ICC

The POSH Act prescribes the following grounds of disqualification of a person from membership of the ICC:

  1. Disclosure by the person of matters which are required to be kept confidential under the POSH Act, such as information regarding the complaint submitted to an ICC, identity of the complainant/aggrieved, the respondent or any witnesses, details of inquiry proceedings and recommendations of the ICC, or action taken by the employer.
  2. If the person has been convicted, or an inquiry is pending against such person, of any offence under any law.
  3. Similarly, if the person has been found guilty, or an inquiry is pending against such person, with regard to any disciplinary proceedings.
  4. Where the person has abused their position, rendering their continued membership in the ICC to be prejudicial to public interest.

On occurrence of any of the above grounds, the member would have to step down and be replaced with individuals possessing suitable qualifications relevant to the category of membership.

Every organization is mandated by POSH law to publish the names and details of the current IC members at prominent places on the premises as well as on their official website.

RESPONSIBILITY OF ICC

The main responsibility that Internal Committee holds are:

  • Receive complaints of sexual harassment at the workplace
  • Initiate and conduct an inquiry as per the procedure
  • Submit findings and recommendations of all the inquiries conducted
  • Co-ordinate with the Employer for implementation of appropriate action
  • Maintain strict confidentiality throughout the process as per established guidelines
  • Submit annual reports in the prescribed format as prescribed

The Internal Complaints Committee is required to be vigilant to redress the sexual harassment complaints and resolve the same as soon as possible.

POWER OF ICC

As per Section 11(3) the Internal Complaints Committee enjoys the powers same as that of a Civil Court and therefore:

  • It is empowered to initiate an inquiry into a complaint of sexual harassment at the workplace according to the Internal Complaints Committee Policy.
  • IC has the power to summon witnesses and parties to state the committee.
  • It enjoys the discretion of summoning evidence to be examined if it may be deemed necessary to do so by the members of the Committee

COMPLAINT MECHANISM

Filing of Complaint-

  • Any individual who feels they have been subjected to sexual harassment may file a written complaint with the ICC within three months of the incident date, or, in the case of a series of incidents, within three months of the date of the latest incidence.
  • The Presiding Officer or any member of the ICC must facilitate the aggrieved party in making a written complaint if the complaint cannot be made in writing.
  • Only if the ICC is convinced that the circumstances precluded the aggrieved party from filing the complaint, can it extend the deadline by an additional three months.

Conciliation-

  • At the complainant’s written request, the Internal Complaints Committee may take action to concile the dispute between the complainant and the respondent before opening an investigation.
  • Monetary settlement cannot under any circumstance be made the basis of such conciliation.
  • In case a settlement has been arrived at, the IC shall record it and forward it to the Company to take action as specified in the recommendation of the IC.
  • The Internal Complaints Committee will also provide copies of the settlement as recorded to the Complainant and the Respondent
  • If conciliation has been successful, the IC will not be required to conduct any further inquiry.
  • If the complainant believes that the Respondent is not abiding by the conditions of the Settlement or that the Company has not taken action, the complainant may submit a written complaint to the ICC for review.

Enquiry

In case, conciliation is not possible or has failed, ICC shall investigate the complaint and provide its report, as promptly as possible, but not later than 90 working days from the date of the Complaint.

Action during pendency of Inquiry

  • If required the aggrieved person or the respondents/accused are transferred to any other workplace;
  • If required the aggrieved person is granted leave up to a period of three months;
  • Grant relief to the aggrieved person

 Manner of Inquiry

  • A copy of the Complaint as recorded by ICC shall be given to the Respondent as well as the Complainant within 7 days,
  • The Respondent shall submit his response to the Complaint as well as to indicate whether the Respondent wishes the ICC to examine any witnesses or furnish any evidence within 10 days.
  • Committee may terminate the inquiry or give ex-parte decision, if complainant or respondent respectively is absent for 3 consecutive hearings, without sufficient reason. Fifteen days written notice is to be given to the party before termination of enquiry or ex-parte order.
  • At any stage of the proceedings before the ICC, neither the complainant nor the respondent shall be allowed to bring any legal practitioner to represent them.
  • From the date of completion of the inquiry, the ICC shall provide a report of its findings and recommendation within 10 days to the concerned authorities as well as complainant and respondent.

Action for Sexual Harassment:

If the allegations are proved then the ICC shall recommend the Employer or District Officer to take disciplinary action by one or more of the following:

  • Written apology.
  • Undergoing a Counselling Session.
  • Carrying out community service.
  • Change of work assignment for either the accused or the victim.
  • Reprimand or censure.
  • Written warning.
  • Suspension or termination of services.

Compensation

Internal Complaints Committee Policy mandates that the compensation by IC shall be determined based on:

  • Any mental trauma, pain, suffering, and emotional distress caused to the aggrieved employee
  • The loss in career opportunity due to the incident of sexual harassment
  • Any Medical expenses incurred by the victim for physical/ psychiatric treatment
  • The income and status of the accused.

Appeal: 

Within 90 days of receiving the recommendations, any party that is unsatisfied or further aggrieved by the implementation or omission thereof may file an appeal with the appropriate appellate authority in accordance with the Act.

Timeline of Complaint Mechanism

Submission of Complaint Within 3 months of the last incident
Notice to the Respondent Within 7 days of receiving copy of the complaint
Completion of Inquiry Within 90 days
Submission of Report by ICC to employer/DO Within 10 days of completion of the inquiry
Implementation of Recommendations Within 60 days
Appeal Within 90 days of the recommendations

STATUTORY REPORTING

  • When sexual harassment constitutes a specific offence under the Indian Penal Code or under any other law, it is the responsibility of the ICC to notify the complainant as soon as possible of her right to file a legal complaint with the appropriate authority, as well as to offer advice and guidance on how to proceed.
  • She should be informed of her rights and the fact that any such action or proceedings initiated shall be in addition to proceedings initiated and /or any action taken under the Act by the ICC.

CONFIDENTIALITY

  • Prohibition of publication of complaint and inquiry proceedings: Identity of the aggrieved person, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the ICC or LCC, as the case may be, and the action taken by the employer or the District Officer shall not be published, communicated or made known to the public, press and media in any manner.
  • Penalty for publication: The person liable for publishing the confidential information shall be liable for penalty in accordance with the provisions of the act.

ANNUAL REPORT BY ICC

  • Section 21 of Sexual Harassment (Prevention, Prohibition and Redressal) Act, 2013 mandates submission of annual report in each calendar year to employer and the District Officer.
  • Section 22 of the Act directs the employer to include information in the annual report which shall include number of cases filed, any disposal of the cases reported and inform such number of cases to the district officer.
  • Rule 14 of the Law states that the following details need to be included in the Annual Report 1. Number of complaints of sexual harassment received in the year
  1. Number of complaints disposed off during the year
  2. Number of cases pending for more than ninety days;
  3. Number of workshops or awareness programme against sexual harassment carried out
  4. Nature of action taken by the employer or District Office

AWARENESS BY ICC

  • The ICC need to regularly conduct awareness sessions for all employees and ensure a well set up Complaint mechanism is in place so that irrespective of gender the aggrieved person does not feel obscure in complaining about his/her concern.
  • All Sexual harassment complaints need to be addressed with full confidentiality and appropriate action should be taken in timely manner against the Respondent if found guilty, irrespective of the position in the organization.
  • ICC should sensitize the topic in the organisation and be readily available for redressal to the aggrieved.
  • This will ensure a sense of security in the mind of people working in the organization.

DO’S AND DON’TS FOR COMPLAINTS COMMITEE

DO’S DON’TS
1. Create an enabling meeting environment. 1. Get aggressive.
2. Use body language that communicates complete attention to the parties. 2. Insist on a graphic description of the sexual harassment.
3. Treat the complainant with respect.  3. Interrupt.
4. Discard pre-determined ideas.  4. Discuss the complaint in the presence of the complainant or the respondent.

 CONCLUSION

The Committee aims to achieve the three objectives of the Act, i.e., Prohibition, Prevention and Redressal of the problem of sexual harassment and let the women work with dignity in the workplace. Governmental authorities have handled the problem of sexual harassment of women at work in a very proficient manner. The POSH Act has established well-informed committees. With ease, the major problem of sexual harassment can be addressed thanks to the central role played by the ICC and its authority. In order to effectively conduct the inquiry procedure and prevent difficulties from persisting for far too long and the aggrieved person from compromising her fundamental rights, a set amount of time is also specified.

Author- Shobhita Saran (intern) and Chhavi Pande – Legal Associate  at Khurana & Khurana, Advocates and IP Attorney, in case of any queries please contact/write back to us via email chhavi@khuranaandkhurana.com.

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