By Rupin Chopra and Ananyaa Banerjee
According to the annual reports of National Commission for Women after the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (herein after referred to as “Act/ POSH Act”) there has been a surge in the number of POSH complaints by 800% over a period of 8 years.
As soon as the organization has head count of 10 employees the POSH Act mandates the formation of an Internal Complaints Committee and not await any instance of a complaint being received from any aggrieved party and thus making it. The POSH Act states that during an inquiry into a complaint of the aggrieved woman regarding sexual harassment at workplace, both the parties should be given equal opportunity of being heard and the inquiry should take place keeping in mind the Principles of Natural Justice.
- Filing of Complaint within 3 months which can be extended as per the discretion of the Internal Complaints Committee
- Initiating Inquiry, the first action meet should be held immediately within reasonable time but not later than 07 working days of receiving the written complaint of the Aggrieved
- Conclusion Internal Complaints Committee is mandated to complete/conclude Inquiry Proceedings within Ninety Calendar Days from the Date of commencement of Internal Complaints Committee
- Tenure of Internal Complaints Committee Members 3 years, from the date of their nomination as may be specified by the employer.
Constitution of Internal Complaints Committee
- Presiding Officer: The presiding officer of the Internal Complaints Committee has to be a woman. This woman should be employed at a senior level at the workplace from amongst the employees.
- Minimum two women employees:The Internal Complaints Committee should consist of at least two members from amongst the employees, preferably committed to the cause of women, or who have legal knowledge or experience in social work.
- External member:An external member who is not an employee of the organisation. This individual should be from amongst NGOs or associations committed to the cause of women, or any other person who is familiar with issues relating to sexual harassment. (Punjab and Sind Bank and Ors. v. Durgesh Kuwar AIR2020SC304)
Conflict of Interest & Bias within Internal Complaints Committee can be defined as a feeling of favor towards or against one group of people, or on one side in an argument, often not based on fair judgement or facts. Bias can arise due to various existing prejudices which can be conscious or unconscious in nature.
A conflict of interest occurs when an individual’s personal interests i.e., family, friendships, financial, or social factors could compromise his or her judgment, decisions, or actions in the workplace.
Appeals: After the report has been filed the parties have an option to appeal the recommendations and finding of the Internal Complaints Committee. Over the years a number of appeals have been filed challenging the report and the constitution of the Internal Complaints Committee implying bias, conflict of interest and unfair proceedings.
In the case of M. Rajendran v. M. Daisyrani and Ors, the Madras High Court stated that the Internal Complaints Committee should be reconstituted if there is a reasonable apprehension that the members may be biased. In the matter the majority of the Internal Complaints Committee members were sub-ordinates of the head of the institution against whom the complaint was filed. It is necessary that the POSH inquiry should be fair and impartial.
In the case of Punjab Sindh Bank & Ors V. Mrs Durgesg Kanwar, the honorable Supreme Court of India stated that there was lack of independent member on the Internal Complaints Committee to preside over the inquiry that had a potential of institutional bias.
In the case of Somaya Gupta v. Jawaharlal Nehru University and Ors, the High Court of Delhi rules that mere apprehension of bias is not enough for reconstitution of Internal Complaints Committee, the petitioner will need to establish clear likelihood of bias. In this case the presiding officer of the Internal Complaints Committee was herself a witness to the incident and hence she recused herself and further there was no more evidence to say that the rest of the Internal Complaints Committee members had any conflict of interest or bias against the parties. Therefore, the court held that there was no need to reconstitute the Internal Complaints Committee.
POSH training help in avoidance of bias or conflict of interest?
A regular POSH & bias training of all the employees and of the Internal Complaints Committee members will avoid so much extra burden and expense on the organization and the employees. (Ruchika Kedia v. Internal Complaints, Goa Institute of Management, Through Its President Prof. Annamika Sinha and Ors. 2020 SCC Online BOM 139)
It is the responsibility of the employer to not only create an Internal Complaints Committee but to also provide them with proper training and workshops in order to make them well versed with the process of how to deal with a posh complaint and conduct an inquiry which should be free of bias and conflict of interest. In Rashi v. Union of India and another (MANU/DE/2178/2020) it was held that the inquiry proceedings should inspire the confidence of the Court the employer should take all the necessary steps to ensure that the Internal Complaints Committee is as per the requirements of the POSH Act and rules thereunder, which may include:
- Ensuring that the complainant and for the accused person have no direct or indirect influence over any member of the Internal Complaints Committee.
- Ensure that all the members of Internal Complaints Committee are well trained to handle POSH complaints.
- Rotate Internal Complaints Committee members periodically to ensure more members are trained.
- Review Internal Complaints Committee and change members if required for each complaint so as to avoid issue of biasness and conflict of interest.
- Recommended that members of Internal Complaints Committee must not be from Human Resource team, Board of Directors and Senior Management.