A blog for External Members & Internal Committee Members, HRs & PoSH learners.
The PoSH Act, 2013, is one of the shortest & simplest laws compared to other laws in our country. No wonder some companies are churning out 'PoSH certified' by the dozen. Neither the Government of India nor the Ministry of Women & Child Development certifies PoSH Trainers or External Members. Becoming an External Member should be a matter of experience and knowledge about the adequate and accurate answers to common & intriguing queries about the lesser-known nooks & crannies of the PoSH Law.
Here is a Q&A featuring five queries, which you might enjoy mulling over if you are PoSH qualified but need more education on the PoSH Law.
1.Should the Internal Committee Members informally ask the Complainant regarding Conciliation or send her an email? A-Both need to be done, but the sequence should be as follows. First, meet the Complainant and explain what Conciliation under Sec. 10 of the PoSH Act entails. Ask her if she would like to opt for it, and allow her time to ponder. Thereafter, follow up with a formal email to the aggrieved woman. The PoSH Law states that she should "request" for Conciliation, which we interpret as Conciliation should be resorted to at the behest of the Complainant. She doesn't need to ask for it in writing. The IC can email her, "we are proceeding with Conciliation as requested by you." They can then take an acknowledgment to her reply email.
2.Can the 90 days of Inquiry be reduced? A-Yes, the IC can reduce the 90 days. The 90-day period is the outer limit under S. 11(4
3. How do we deal with the parties giving new information after the Inquiry is concluded and the Inquiry Report has been made (all within 90 days itself)? A-Let's say the Inquiry got over, and the Inquiry Report was made before the designated 90-day period.Suppose one of the parties wants to give new information as evidence, which could change the Inquiry's Findings. First, the concerned party must state why they didn't submit the evidence earlier. The IC needs to record this reason in the Inquiry Report. Then the IC needs to afford extra time to both the parties, even if it means the 90 days will have to be extended. The due process has to be repeated. The evidence submitted has to be shared with the opposite party. The opposing party needs to be given time to review the new evidence. Both parties need to be given the opportunity to cross-examine the other party, the witness, or an additional witness, as the case may be.
Suppose new evidence surfaces after the Inquiry, and the same has no bearing on the Findings. In such a case, the IC need not consider the new evidence by repeating the due process. However, they must record everything as it happened with good hygiene.
4A. If a Respondent (unwittingly/mistakenly) shares evidence/information that is self-incriminatory, can the IC still rely on this information and find him guilty? A-Evidence is evidence, no matter who shared it, knowingly or mistakenly. If the Respondent submits it without realising that the evidence could or goes against him, there is no problem using this evidence unless he disputes it.
4B. If he retracts it and states that the evidence is false? Would that change things? A-Maybe. Suppose the Respondent submits a document and says this document is edited or fabricated (meaning it doesn't exist). Even the IC cannot use that document as evidence in such a case. Evidence submitted by any party has to be undisputed by both parties, to be used as evidence in the Inquiry. If the IC can, while questioning, inadvertently get him to say that the evidence is genuine, then that evidence is not disputed by him and can be used by the IC. But this does not mean that the IC should coerce him into admitting that the evidence is not false.
The PoSH law is essential for workplace safety, brush up your knowledge on steps to implement PoSH guidelines and tackle Sexual Harassment complaints.: Some IC Members are known to use their power & authority to intimidate the Respondent into speaking the truth. With great power comes great responsibility. IC has a great responsibility to use its powers judiciously. IC must prove what they can, with reason, stemming from the Parties' statements, witness statements, cross-examinations & evidence. If they are unable to verify the Complainant's or the Respondent's statements, they should state in the Findings that the Inquiry is inconclusive. In case they are unable to establish the Respondent's guilt, the Inquiry Report should mention the same.
5. Can any action be taken against persons (senior officers but not the Respondents) who indulge in acts that amount to retaliatory behaviour against a Complainant? A-The PoSH Act doesn't provide for such a situation. It provides for taking action against a Respondent, provided the Inquiry concludes that the Respondent is guilty, whether guilty of Sexual Harassment or guilty of both Sexual Harassment & Retaliation.
A Note: Retaliation itself can be devoid of any sexual act or connotation but is still considered as continuing Sexual Harassment if done concerning the Sexual Harassment allegation/s under Inquiry. One might argue that Retaliation by another person (a non-Respondent, if you may) also amounts to creating a Hostile Work Environment in relation to an act of Sexual Harassment committed by the Respondent. Therefore, it should be construed as continuing Sexual Harassment, and the IC should be able to give a Recommendation (punishment) for this person. But that is not precisely the case. For the above argument to hold in the eyes of the PoSH Law, the Sexual Harassment and the retaliatory act would have to be committed by the same person. Though S. 3(2), read with special reference to sub-section (iv), does not mention "Respondent," it can be interpreted as a non-Respondent as being covered under the ambit of the PoSH Law. However, it may be counterproductive to extend the scope of the definition of Sexual Harassment under the PoSH Law to acts by non-Respondents.
A Solution: Adverse actions from other persons at the workplace could be dealt with under the Code of Conduct or Code of Ethics and inquired into by a Disciplinary Committee. To learn more about the Code of Conduct and the CoC training & dissemination tools, please visit the Code of Conduct - Rainmaker. The Complainant can't be denied the right to file a complaint against the person she believes to be the Respondent's friend or supporter in the act of Sexual Harassment, especially if that person is choosing to retaliate against her because of the Respondent. Once she files a complaint, that person or those persons also become Respondents (No. 2, 3 & so on). Once they become Respondents, it becomes the IC's duty to inquire if they retaliated against her for filing a Sexual Harassment complaint against Respondent No. 1. The Retaliation could also be for not giving in to the sexual favours demanded/requested.
A Note: There can be multiple Respondents for a single Complainant, just like there can be numerous Complainants for a single Respondent. Rainmaker is a one-stop solution for all your PoSH Compliance needs. If you have any specific PoSH Training requirements or want to sign up for our monthly newsletters, please fill out the Contact Form at Home - Rainmaker. You can also visit our PoSH page here: PoSH Compliance and PoSH Training by Rainmaker Experts.
If you have Prevention of Sexual Harassment-related queries that you would like answered, please write to info@rainmaker.co.in. You may also share some intriguing scenarios related to the PoSH Law, the Parties, or Internal Committee Members. We will utilise them to create queries and answers and may share your name (if you permit) to give you credit for sharing the idea. You may also read the blog, Employees & Internal Committee Members Ask, Is That Even Sexual Harassment?- by clicking here: Is that considered to be Sexual Harassment at the workplace? (rainmaker.co.in)
Author: Sumali Nagarajan
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