Complaining Procedure
Who can complain about sexual harassment under POSH Act?
Anybody can become a victim of sexual harassment. As per the POSH Act, any aggrieved woman who is:
- An employee
- A visitor to the office (example, has come for an interview).
- Client or a Vendor
- Housekeeping and maintenance staff
- Intern
- Volunteer
- Temporary worker
has the right to file a complaint of sexual harassment with the employer. It is important to note that the aggrieved woman need not be an employee of an organization to file a sexual harassment complaint.
Who is the Complainant?
POSH Act defines the Complainant as the person who filed a written complainant of sexual harassment before the IC/LC. Either the aggrieved woman or any other person who files a complaint on her behalf can be the complainant.
Who is the Respondent?
The person against whom a complaint is filed is called the respondent. The respondent can be an employee of an organization or a third-party.
Lodging A Sexual Harassment Complaint
The complainant should submit a written complaint to the IC/LC.
Can the IC/LC conduct inquiry into anonymous complaints?
The POSH Act does not explicitly say anything about anonymous complaints. This simply means the LC/IC does not have the authority to inquire into anonymous complaints.
Deadline to file a Complaint
The complainant can file a complaint within three months from the incident, or in case of a series of incidents, within three months from the last incident. The IC/LC can use its discretion to extend this timeline to another three months if the reason for delay of filing the complaint is valid.
Can the complainant register a police complaint?
Apart from registering a complaint with the Internal Committee or the Local Committee, POSH Act allows the aggrieved woman to file a police complaint also.
Section 19 (g) of the POSH Act states that the employer must “provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force;
Redressal Process
Conciliation
After submitting the complaint, complainant can request the LC/IC to settle the matter through conciliation. The IC/LC will communicate the complainant’s desire for conciliation to the respondent. If the respondent agrees for conciliation, the IC/LC can initiate for conciliation. The features of conciliation are:
- The IC must document the settlement and share the copy of the report with the employer, complainant and the respondent.
- Monetary settlement should not be the basis for conciliation.
- Once a complaint is settled via conciliation, no inquiry will be initiated on the same.
What should the IC do if the respondent is from another organization or a third-party?
If the respondent is an employee of other organization, the IC will forward the complaint to the IC of the respondent’s organization and in case of a third-party, IC will help the complainant in filing a police complaint.
Inquiry
The IC/LC will initiate inquiry into the complaint if:
- The complainant did not request for conciliation.
- The aggrieved woman informs the IC/LC that the respondent did not comply to any of the terms or conditions arrived at during conciliation or
- The respondent does not agree for conciliation.
Inquiry Process
- The complainant will submit six copies of written complaint with supporting documents and names and addresses of the witness.
- IC/LC will send one copy of the complaint to the respondent within 7 working days.
- The respondent will submit his/her response to the IC/LC with supporting documents and list of witnesses within 10 working days.
- The IC/LC will begin the inquiry and finish it within 90 days. Every hearing of the inquiry will have a minimum of three IC/LC members including the Presiding Officer of IC or Chairperson of LC. The Committee will also ensure to follow the principles of natural justice during inquiry.
- If the complainant or the respondent does not appear for three consecutive hearings without a valid reason, the IC/LC can terminate the inquiry and pass an order ex-parte (without hearing to both the sides completely). Before terminating the complaint in such a manner, the IC/LC will give a notice of fifteen days to the parties.
- It is to be noted that neither of the parties can bring their lawyers to represent them in the inquiry conducted by the LC/IC.
Timelines to be followed during Inquiry
IC/LC have the powers of Civil Court
For the purpose of conducting inquiry, IC/LC is vested with the powers of the Civil Court. Section 11 (3) of the POSH Act states: “For the purpose of making an inquiry under sub-section (1), the Internal Committee or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely:—
- summoning and enforcing the attendance of any person and examining him on oath;
- requiring the discovery and production of documents; and
- any other matter which may be prescribed.
Interim Reliefs for the Aggrieved under POSH Act
If the aggrieved experiences any difficulty or discomfort when the case is under inquiry, she can inform this to the IC/LC. The IC/LC will recommend the employer to provide any of the following interim relief:
- Transfer the aggrieved woman or the respondent to any other location;
- Grant leave to the aggrieved woman up to a period of three months (this leave is in addition to the leave she is already entitled to)
- Restrain the respondent from reporting on the work performances of the aggrieved woman or writing her confidential report, and assign the same to another officer.
- In case of an educational institution, restrain the respondent from supervising any academic activity of the aggrieved woman.
Conducting Inquiries in the New Normal
Conducting inquiries when the employees are working remotely, posts several challenges. Example:virtual meetings, collection of evidence, maintaining confidentiality. We have put together a comprehensive guide to this which can be accessed here.
Inquiry Report by the Internal Committee
Section 13 (1) of the POSH Act states “On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties.”
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