Security of tenure and protection for Internal Committee Members in Private Workspaces

  • Posted on January 3, 2025
protection for Internal Committee Members

By Anuradha Gandhi and Isha Sharma

Introduction:

In a writ petition before the Hon’ble Supreme Court, the petitioners had prayed that the Apex Court shall direct the Ministry of Women and Child Development to protect the service conditions of Internal Committee (IC) Members so as to secure their independence, to declare that the IC members are public servants and are equivalent to IC members of public sector.

Directions for setting up of a Commission to review the deficiencies in the Sexual Harassment of Women at Workplace Act, 2013 also known as the POSH Act, particularly for the protection of rights of IC members, in the private sector, and protection from persecution and harassment of IC members.

The issues raised in the petition were:

  • That the women members of the IC in the private sector are not entitled to the same degree of protection, tenure and security as is enjoyed by IC members in the public sector.
  • That the IC members shall be subjected to arbitrary and retaliatory action and that they can be terminated from their positions (with up to three month’s severance) without reason if a decision is made that deviates from the wishes of senior management.

Presently, the Hon’ble Supreme Court has issued the notice to the Ministry of Women and Child Development, Corporate Affairs and National Commission for Women, seeking response on the issues raised in the petition, to be returned on January 24th, 2025.

POSH Act, Purpose of the POSH Act and the Redressal Mechanism:

The very foundation of the POSH Act, 2013 lies in Article 14, 15 and 21 of the Constitution of India[1] and in the International convention on the elimination of all forms of discrimination against Women (CEDAW) and in order to give effect to the said convention and to the fundamental rights of the women for their protection at workplace, the Sexual Harassment of Women at Workplace Act (Prevention, Prohibition, and Redressal) hereinafter referred to as POSH Act, 2013 was enacted.

The purpose of the POSH Act lies in :

  1. Prevention;
  2. Prohibition and
  3. Redressal of the sexual harassment at workplaces.

The POSH Act came into force on December 9, 2013 and it is legally binding on all employers and the workplaces.

How Does the Internal Committee Work?

Section 4 & 6 of the POSH Act[2] provides for the constitution of the redressal mechanism in the form of Internal Committee (IC) and the Local Committee (LC), as the case may be.

IC has the powers to investigate the complaints of sexual harassment, guide an aggrieved woman to file a complaint and to make requisite recommendations for the employers.

Constitution of Internal Committee and Local Committee:

Constitution of Internal Committee and Local Committee
  Internal Committee (IC) Local Committee(LC)
Composition-Section 4(2)
  1. A Presiding Officer: A senior female employee of the organization.
  2. Two employee members.
  3. One external member:
    From NGO or association committed to the cause of women.
  4. Punjab and Sind Bank and Ors. v. Durgesh Kuwar
    50% of the IC members to be women.
  1. Chairperson: An eminent woman committed to the cause of women
  2. Member: A woman working in block, taluka ward or municipality in the district.
  3. Two members: Working in an NGO or association committed to the cause of women.
Tenure- Section 4(3) Shall hold the office not more than three years. Shall hold the office not more than three years
Qualifications- Section 4(2)(a)
Section 7(1)(a)
  1. Presiding Officer- a senior-level female employee at the workplace.
  2. Employee Members- legal knowledge or experience in the social sector or committed to the women’s cause.
  3. External member- From NGO or Associations committed to the cause of women or familiar with the issues relating to sexual harassment.
  1. Chairperson- From the field of Social work and committed to the cause of women.
  2. One Member- woman working in block, taluka ward or municipality in the district.
  3. Two members: Working in an NGO or association committed to the cause of women.
Grounds of Disqualification- Section 4(5)
  1. Disclosure of Confidential Information
  2. Conviction or enquiry.
  3. Found guilty
  4. Abuse of position
  1. Disclosure of Confidential Information
  2. Conviction or enquiry.
  3. Found guilty.
  4. Abuse of position

 

  • It is mandatory for every employer to constitute an IC. Where the workplace are located at different places or divisions, the IC shall be constituted at all the places and divisions.

Powers of IC as a Civil Court:

Section 11(3) of the POSH Act, enumerates the powers of the Internal Committee. The IC is vested with the powers of a Civil Court under the Civil Procedure Code, 1908, while dealing with an enquiry:

  1. It is entitled to initiate an inquiry into the complaint of a sexual harassment incident at the workplace.
  2. It can summon witnesses and parties before the committee to give a statement or a documents.
  3. The IC in exercise of its powers, summon evidence to be examined if it is required in the due process.
  4. The IC can take measure to enforce the completion of enquiry within the prescribed period of 90 days.
  5. The IC can initiate action against the respondent in accordance with the service rules of the organization.
  6. The IC may deduct from the salary of the respondent as compensation to be paid to aggrieved women.

Protection of the IC members during their tenure:

  • IC members cannot be removed without a sufficient cause

    The Committee members shall not be subjected to removal or termination as the Court in Miss G. Shoba v. Union of India and Ors[3], directed that the Internal Committee is a permanent body for three years and members cannot be removed or changed on mere apprehensions that the committee is biased or has any other conflict of interest. Therefore, committee cannot be reconstituted by appointing a new committee member or a member cannot be removed during the pendency of the enquiry. However, the Court may order such member to disassociate from such enquiry.

  • Constitution of new IC while the enquiry is pending for consideration

    In Linda Eastwood v. Union of India and Ors., the report of the first committee was pending for consideration and the respondent (employer) has re-constituted the IC committee in order to get the decision of the committee in his favour. The court directed that since the report of the first IC is still pending for consideration, the employer is restricted to reconstitute the second IC committee and held that formation of another IC while the enquiry is still pending before the first committee amounts to flagrant violation of principles of natural justice and also held that the credentials of the Presiding officer should absolute be without blemish.

  • Sexual harassment complaints against senior management
    Respondent was senior in hierarchy to the Chairman of the Departmental Level Committee and complainant argued that the Departmental Committee may not be in a position to take a decision without any bias or prejudice, this apprehension may be correct or may not be correct, but it cannot be disputed that apprehension in the mind of the petitioner is reasonable. In such circumstances, the court consider it appropriate that complaint of the petitioner be transferred to the State Level Committee.[4]

    The POSH Act, 2013 also provides that when the sexual harassment complaint is against the employer that could be the Head of the establishment or the head of a private company himself, in such cases the complaints can be filled before the district office the Local Committee.

  • Impartiality of the IC
    The Court in M.G. Shrihatti v. Univeristy of Mumbia and Ors.[5]mandated that the sexual harassment at workplace covered not only teachers, students but other employees and members of the management as well and when a complaint is against a high ranking person like a Principal, the action will have to be taken by the University without any hindrance by any authority and in this case the powers were bestowed with the Vice-Chancellor.

In Rashi v. Union of India and Ors[6]., laid down certain directions to be followed by the IC regarding its functioning:

  • IC members must be impartial i.e. they should not have any personal knowledge or interest in the case or be connected to the case in any manner;
  • IC members should not have conflict with any of the parties involved;
  • IC members ought to possess blemish-less credentials;
  • An external member should be an independent person.
  • There should be no undue pressure and influence on the IC from senior levels;
  • Principles of natural justice should be followed scrupulously; and
  • The Visakha Guidelines should continue to guide the IC and should be followed rigorously.

Even after numerous judgments are passed and several provisions are enacted in this favour, however, in the practical implementation the Internal Committee members are apprehended for being biased as they are often made to work in favour of the management itself rather than the victim or the respondent. The consequence of which is that the complaints of sexual harassment are ended up in conciliation or are being brushed up under the carpet and are often so unreported.

Surbhi Gandotra, Associate Advocate at S.S. Rana & Co. has assisted in the research of this article.

[1] Article 14- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 15- The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

Article 21-Right to life and to live with dignity.

[2] Section 4 & 7 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

[3] Writ A no. 31659 of 2015

[4] Linda Eastwood v. Union of India and Ors. W.P. Crl. 1904/2013, Crl. M.A. Nos. 17357/13, 18718/13 and 9487/15, in the High Court of Delhi, decided on: 23.12.2015

[5] 2005(2)MhLj 685

[6] AIRONLINE 2020 DEL 1557