“First Five Pre-Inquiry Action-Steps No Internal Committee Presiding Officers Dare Skip”

“First Five Pre-Inquiry Action-Steps No IC Presiding Officers Dare Skip”

 First Five Steps Put succinctly are:

Step-1. Finalize & Notify a Date, Time & Place of Starting Redressal Proceedings.

Step-2. Welcome all present, put the Complainant & the Respondent & Others at ease; Build Rapport; Earn Trust; Commit to Preserve, Promote & Maintain Workplace Decorum, Decency & Non-Negotiable Discipline during Proceedings; Describe Penal Provisions for unruly behavior or Disrupting Redressal Proceedings since IC Proceedings are quasi- judicial;

Step-3. Explain with sufficient precision, all relevant Provisions of SHWW (P, P & R) Act 2013 Commonly referred to as PoSH Act 2013; the Rules framed thereunder; Service Rules or Certified Standing Orders relating to Misconduct & Punishment therefor; Penalty for Making Known the Identities of the Complainant and or the Respondent, Contents of Filed Complaints, any part of I C Proceedings or IC Findings & Disciplinary Action taken by Employer/Disciplinary Authority.  

Step-4. Precisely Explain the Twin Principles of Natural Justice, Principle of Preponderance of Probabilities for the IC to arrive at their Findings & Recommendations; Principle of Protection of Tenure of IC Presiding Officers & remaining Members; 2 no's Essential Records namely “Order-Sheets” and “Verbatim Recording of Sworn Testimonies, Cross-examinations, Clarifications “by the I C; “Admitting Documentary Evidence/Proof” produced by the Complainant, the Respondent & their Witnesses, if any, to substantiate their respective Stands”; Opportunity to the Complainant & the Respondent to Sumit their Written Representation against IC’s Findings & Recommendations    

Step-5. Precisely Explain the “Option of Conciliation” available only to the Woman-Complainant which shall be availed without any Monetary Consideration & which must be at her behest.

In case any Aggrieved Woman-Complainant declines the Option of Conciliation, the I C is bound to proceed with Full-Fledged Inquiry Proceedings as per Twin Principles of Natural Justice and the Procedures laid down for such Internal Inquiry, by our Hon'ble Judiciary.

Now, the First Five Pre-Inquiry Steps at length:

Step-1.

Finalizing a Date, Time & Venue of commencing the Redressal Proceedings.

After receiving the Employer’s Office-Order to begin Redressal Proceedings, the Presiding Officer of the Internal Committee, must consult all Members of her IC including Non-Employee-Member (External) to Finalize a Date, Time and a Venue to begin the prescribed Redressal Proceedings relating to and connected with the Sexual Harassment Complaint Filed by the Aggrieved-Woman-Complainant who may be an Employee of the concerned Workplace or a Non-Employee, considering On-Duty Hurs of the Complainant and the Respondent.

Before the Internal Committee takes the First Action-Step, the Employer is Duty-bound to initiate and complete i) Issuing a Charge-Sheet or Explanation-seeking Letter or Show-Cause Noice informing her/him of said Complaint constituting Acts of Misconduct punishable  under Codified Service Rules or Certified Standing Orders, applicable to the Respondent, and asking her/him to submit her/his Written Explanation in her/his defense, and would have received the same and then Law-Bound to forward to the IC Presiding Officer all the 3 Documents referred to above.

Then, inform-in-writing the Complainant and the Respondent about the Schedule of starting Redressal Proceedings and advise them to attend the Proceedings which shall always and throughout be in accordance with the Twin Principles of Natura Justice and in the Order prescribed by our Judiciary, from time-to-time.

It is Fair, Just, Proper and Lawful for the Internal Committees to extend & render all Reasonable Opportunity to the Complainant and the Respondent, at all points of time during Redressal Proceedings, as and when requested by either or both of them, which all must be Recorded by the IC Functionaries and their attestations must be properly Recorded for future reference.

Act discreetly if either the Complainant or the Respondent seeks “Adjournment” or applies for Re-scheduling the Date or the Time or the Place of Commencing, Conducting or Concluding the Ongoing IC Redressal Proceedings. All such events need to be Recorded in the Oder-Sheets created & maintained by the IC as Legal Documents not to be shared with others.   

Step 2.  

Welcome all present, put the Complainant & the Respondent & Others at ease; Build Rapport; Earn Trust; Commit to Preserve, Promote & Maintain Workplace Decorum, Decency & Non-Negotiable Discipline during Proceedings; Describe Penal Provisions for unruly behavior or Disrupting Redressal Proceedings since IC Proceedings are quasi- judicial.

Step-3.

Explain with sufficient precision, all relevant Provisions of SHWW (P, P & R) Act 2013 Commonly referred to as PoSH Act 2013; the Rules framed thereunder; Service Rules or Certified Standing Orders relating to Misconduct & Punishment therefor; Penalty for Making Known the Identities of the Complainant and or the Respondent, Contents of Filed Complaints, any part of I C Proceedings or IC Findings & Disciplinary Action taken by Employer/Disciplinary Authority;  

Also, inform the Aggrieved-Woman-Complainant and the Employee-Respondent that the

 a) Internal Committee is an Independent Redressal Body/Entity constituted by Every Employer of each Workplace Premises with Ten (10) and more Employed/Engaged Persons present at the Workplace Premises, irrespective of the Fact whether a Woman is employed/engaged or not;

b) Internal Committee is never Commanded or Controlled or Supervised by Employers or the Management or any Other Govt or Non-Govt Authority, whosoever, though Constituted by the Employers, themselves and its Presiding Officer, Members-Functionaries Nominated for notified Tenure which could be up to a Period of Three Years;

c) IC Presiding Officers & Members Are like “Judges”, hence Protected by Principle of Protection of Tenure” & Can’t Be Removed before expiry of Period of their Nomination except for proven Case of Dereliction-of-Duty;

d) I Cs have Authority & Powers of Civil Courts for i] Enforcing Attendance of Any Person + ii] Enforcing Production of Any relevant Documents; and

e) I Cs Findings & Recommendations Must be Conclusive and Definite without any Possibility of Second Interpretation; and

f) I Cs Findings & Recommendations are Final and Binding on the Employers/Managements / the designated Disciplinary Authority including its Recommendation for Deduction of Compensation Amount from the Salary/ Wages of the Employee-Respondent in easy instalments; and g) It is noteworthy that the Unpaid Amount of Compensation as Recommended by the IC is treated as Land Revenue and shall be so recovered. 

Step 4.

The Internal Committee must take all due care to precisely Explain to the Aggrieved-Complainant and the Employee-Respondent the below stated Points, Precepts, Provisions, and Seek &Secure “Clear-cut, Categorical Affirmations” at Regular Intervals and Record their Re-affirmations to the effect that they, both have understood the Provisions made Known to them, jointly and have therefore No qualms or reservation whatsoever.

i) the Twin Principles of Natural Justice namely i) No one can be a Judge in her/his Own Case/ Cause; and ii) Hear the Other Side/ No One can be condemned Unheard.

ii)   Principle of Preponderance of Probabilities for the Internal Committee to arrive at their Findings & Recommendations.

iii) Principle of Protection of Tenure of IC Presiding Officers & remaining Members.

iv) 2 nos Essential Records namely “Order-Sheets” and “Verbatim Recording of Sworn Testimonies, Cross-examinations, Clarifications “by the I C;

v)   Admitting Documentary Evidence/Proof produced by the Complainant, the Respondent & their Witnesses, if any, to substantiate their respective Stands”;

vi) Opportunity to the Complainant & the Respondent to Sumit their Written Representation against IC’s Findings & Recommendations after the Internal Committee, on conclusion of their Inquiry Proceedings, issues Signed Copies of their Inquiry Findings & Recommendations finalized within Ten (10) Days from the Date of completing their Inquiry; and

vii)    Review the Written Representation received from the Aggrieved-Woman-Complainant    and or the Employee-Respondent and then inform them both of IC’s Final findings.

Step-5.

“Option of Conciliation” under the Sexual Harassment of Woman at Workplace (Prevention, Prohibition& Redressal) Act 2013, is available only to the Woman-Complainant which shall be availed without any Monetary Consideration & which must be at her behest. This Option is not available to the Employee-Respondent.

In case any Aggrieved Woman-Complainant declines the Option of Conciliation, the I C is bound to proceed with Full-Fledged Inquiry Proceedings as per Twin Principles of Natural Justice and the Procedures laid down for such Internal Inquiry, by our Honble Judiciary.

Full-Fledged Inquiry Proceedings take time because the Complainant and the Respondent need to prepare themselves to proceed cautiously, mindfully and with ensuring Safeguards.

In such circumstances, Ticklish Situations may Crop-Up, unpredictable Submissions could be put up and behavioural issues raked in. So, the ICs must be On-Guard, attentive, considerate and may need to” Adjourn” the ongoing Proceedings for thee time being and Resume Inquiry Proceedings at a suitable time.

All the Transactions relating to Conciliation must be properly Recorded by the I C and the Complainant and the Respondent have to attest the Recording of the Conciliation Proceedings.

The I C must prepare a Conciliation Report, if Conciliation without any Monetary Consideration is successfully concluded and forwarded to the Employer for Action and Report back to the IC.

Details About any Point / Step shall be shared with you if you so need; …Email to me shall schedule On-Line tete-a-tete to clarify your Doubts & Dilemma.

                                                                                   

Harsh Kumar Sharan, XLRI Alumnus

Spl. Educator PoSH Programs Serving Non-Employee-Member on 60+ Internal Committees PAN India

Call for Consultations on 91 956045376/ or Email to me at hksharan@gmail.com / hksharan@kritarth.in / or shakti@kritarth.in / www.kritarth.in  

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14th Nov 2023