DOCUMENTATION AS EVIDENCE IS THE KEY COMPONENT FOR INTERNAL COMPLAINTS COMMITTEES’ INQUIRY PROCEEDINGS
Karma Global is in the business of establishment and vendor compliance management. It has hundreds of elite clients on its service dispensing list. The expert staff on its roll deals with thousands of regulatory compliance acts on an Indian basis, some of the acts being state-specific while others are enacted by the Central Government.
One of the acts where the expertise of Karma Global lies is the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, passed in 2013.
This Act defines the broad framework for sexual harassment of women in the workplace, laying down the procedures for a complaint and inquiry, and the action to be taken. This Act only broadened the Vishaka Guidelines which were already in place.
The Visakha guidelines, which were legally binding, defined sexual harassment and imposed three key obligations on institutions — prohibition, prevention, and redress. The Supreme Court directed that they should establish a Complaints Committee, which would look into matters of sexual harassment of women in the workplace.
The 2013 Act broadened these guidelines.
It mandated that every employer must constitute an Internal Complaints Committee (ICC) at each office or branch with 10 or more employees. It lay down procedures and defined various aspects of sexual harassment, including the aggrieved victim, who could be a woman “of any age whether employed or not”, who “alleges to have been subjected to any act of sexual harassment”. It mandated that every employer must constitute an Internal Complaints Committee (ICC) at each office or branch with 10 or more employees. It lay down procedures and defined various aspects of sexual harassment, including the aggrieved victim, who could be a woman “of any age whether employed or not”, who “alleges to have been subjected to any act of sexual harassment”
DOCUMENTATION AS EVIDENCE IS THE KEY COMPONENT – Why Document?
Documentation here refers to the written and retained record of a sexual harassment investigation. These records are legally mandated elements and also reduces the risk of legal liability if the IC order is challenged in an appeal before a court.
Documentation is an important component of the inquiry proceedings. The inquiry by IC is subject to challenge before the courts, wherein all the documents may be examined for a judicial review.
In one of the recent cases, i.e, Arti Devi v. Jawaharlal University (W.P.(C)–9407/2019) the Delhi High Court asked the Registrar of JNU to submit files relating to the complaint of the petitioner, the recommendations of IC and the evidence on the processing of said recommendations.
While pointing at the necessity of proper documentation of IC investigations, Advocate and a leading POSH practitioner, Suruchi Kumar, says,
“The recent reprimand of JNU Registrar by the Delhi High Court on non-production of relevant documents and files relating to a complaint of sexual harassment filed by a Ph.D. student not only emphasizes the need to maintain proper documentation but also the need to store them in an area where they are easily accessible. In today’s time where both complainant and respondent are not afraid to appeal against the decision, maintenance of proper documentation not only helps substantiate the actions of IC but also avoids falling foul of the court. In many past instances, I have seen IC members not maintaining proper records of proceedings and then running helter-skelter transcribing every meeting because they fear action from the authorities.”
Further, section 25 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 categorically states that the government can authorize any officer to make an inspection of the sexual harassment investigation records and the workplace.
DOCUMENTATION AS EVIDENCE IS THE KEY COMPONENT – What To Document?
A list of documents that need to be maintained is given below as per the sequence of events. (Note: The order may vary from case to case basis.)
- Copy of the complaint
- Proofs attached with the complaint
- List of witnesses provided by the complaint
- Notice issued by the IC to the respondent
- Reply of the respondent
- Proofs attached with the complaint
- List of witnesses provided by the respondent
- Statement of complaint and respondent
- Statements and cross-examination of witnesses
- Inquiry report (Signed by all members)
- Representations submitted by the parties against the report
- Final inquiry report submitted to the magistrate
- Confidentiality agreements signed by the complaint, respondent, witnesses, and others as mentioned by the committee
- Minutes of all the meetings in verbatim
- All the notices of the meetings
- Any order or directions issued to the management – in a date-wise order.
DOCUMENTATION AS EVIDENCE IS THE KEY COMPONENT – The Annual Report
Annual reports of all establishments must contain information about the POSH Law’s implementation, including details about the sexual harassment complaints that have been submitted, resolved, and are still pending at each organization.
Rule 14 states that the following details need to be included in the annual report-
1. Number of complaints of sexual harassment received in the year
2. Number of complaints disposed of during the year
3. Number of cases pending for more than ninety days
4. Number of workshops or awareness programs against sexual harassment carried out.
5. Nature of action taken by the employer or District Officer.
The due date for filing an Annual Return under the POSH Act [Sexual Harassment of Women at the Workplace (Prevention, Prohibition & Redressal) Act, 2013] for each year is 31st January. Karma Global’s Regulatory & Governance Division takes care of all the returns to be filed under each of the Acts on the required due dates for all its clients on an India basis and one such activity is the Sexual Harassment return which is filed on or before 31st January of each year.
The returns to be filed in the District Officer’s Office also contain the following columns just like Annual Report.
· Number of complaints disposed of during the year
· Number of cases pending for more than ninety days
· Number of workshops or awareness programs against sexual harassment carried out.
· Nature of action taken by the employer or District Officer
DOCUMENTATION AS EVIDENCE IS THE KEY COMPONENT – Conclusion
Documentation here refers to having vital records on hand in the case of sexual harassment inquiry. The records prove the authenticity of the investigation at hand and statements /documents collected and retained stand the test of time and at any given point, cannot be contradicted as each page is duly signed by all the parties concerned and subsequently this cannot be retracted.
Thus, this documentation increases the power of an inquiry especially so when an Internal Complaints Committee is set up for this purpose officially to look into the complaints, and is also given the power of a civil court
The Internal Complaints Committee is empowered to initiate the inquiry on the complaint filed against sexual harassment. It has the power to collect the evidence and summon witnesses. It can also recommend the measures and actions to be taken to try another such case in the future.
The Act gives the IC the powers of a Civil Court and thus it acts as a quasi-judicial body empowered to summon or enforce the attendance of any person, can order the production of documents, and perform any other matter(s) as may be prescribed.
If ICC concludes that the allegations made were false, malicious or the complaint was made knowing it to be untrue or forged or misleading information has been provided during the inquiry, the complainant shall be liable to be punished as per the relevant provision of the aforementioned UGC Regulations 2015. If ICC concludes that the allegations made were false, malicious or the complaint was made knowing it to be untrue or forged or misleading information has been provided during the inquiry, the complainant shall be liable to be punished as per the relevant provision of the aforementioned UGC Regulations 2015.
Proprietory blog of Karma Global Tech Management Firm
This blog has been compiled by the internal staff of Karma Global with the knowledge and expertise that they possess, for its monthly newsletter Issue 03 of September 2022 in case of specific or general information or compliance updates for that matter, kindly reach out to the Marketing Team – kush@karmamgmt.com / yashika@karmamgmt.com