Due process should either be defined by law or by corporate policy.
If the law does not provide the mandated procedural steps for due process, then the organization must ensure that the policy and procedure that it will adopt is compliant with the law.
As much as possible, corporate due process must be simple and fair. It must avoid complex processes that only courts are capable of handling and deciding.
Team Kritarth’s Response, Point-wise are as follows:
Point 1:- I am a member of an Internal Complaints Committee on Sexual Harassment in a Company. We are in the process of conducting an Inquiry. I may please be guided for clearing the following doubts.
Team Kritarth’s Spl Educator’s Clarification: The ICC Members must compulsorily attend Twin Programs organized by your Employer (read the Occupier, the Factory Manager, the Manager named in the Establishment Certificate or the HOD as the case may be) and conducted by the Spl Educator as defined in the Sexual Harassment of Woman (P.P & R) Act 2013 and the Rules gazetted. These 2 Programs viz Orientation Program and the Capacity & Skills Building Programs are Legally-compulsory to be held and proper Records maintained for inclusion in the Annual Statutory Report to be prepared and Filed by the ICC Presiding Officer for Calendar years 2013, 2014,2015 onwards; for Monitoring and Inspection by Govt Authorities and for forwarding the Report to the Employer so that in the Director’s Annual Report for the Financial Years, the Directors Make Disclosure under Section 134 of the Companies Act.
The Inquiry by the ICC must be conducted in accordance with the Principles of Natural Justice.
Your Company/Establishment must have by NOW complied with the above Legal Obligations. If Not, please quickly initiate action-steps to ask the Employer / Head of Institution to Organize the Twin Programs for ICC so that you become Thoroughly Prepared to Discharge Your Legal Duties, properly and faithfully failing which anyhow Inquiry shall be held by the Law a Bad Inquiry constituting Dereliction of Duties on the part of the ICC Members conducting the said Inquiry.
Point-2:- The Complaint has been filed and the Respondent submitted the reply. The Respondent was given right to have a colleague present his case as his Representative. Can the same rights be given to the complainant?
Team Kritarth’s Spl Educator’s Clarification:- Most Certainly yes because your ICC allowed this privilege to the Respondent and now /henceforth keep in view the Legal Provision that No Legally Trained Person (Lawyer, Advocate, ) should ever be associated with ICC’ Internal Inquiry Proceedings.
Point-3:- In the first hearing the complainant is asked to present the case. Is this required to be done in the presence of respondent? Can she be allowed to present further details regarding complaints made in the original complaint, like examples of past incidences supporting the claims made in the complaint?
Team Kritarth’s Clarification: Any Testimonies / Statements/Deposition either by the Aggrieved Woman Complainant or the Respondent or their Witnesses or Admission of Evidences for Examination must necessarily be done by the ICC in the Presence of the other ( Complainant or the Respondent). Further, the Respondent was asked to submit Explanation to the Complaint or Complaints as stated earlier in the Original (First) Complaint and in support of that whatever Evidences she wants to examine should be taken note of /recorded. Let her state whatever she wants to, but it will be Fair and Proper for the Punishing Authority to take into account the Complaint in the so called OARIGINAL Compliant only. Principles of Natural Justice requires that the Respondent is give Full Opportunity to Know additional Complaints beforehand so that he can submit his Explanations.
Point-4 and Point-5:- Can the respondent be allowed to cross examine her directly or it has to be done as replying to the statement given by the complainant?
Team Kritarth Spl Educator’s Clarification: - Cross-examination is a function /opportunity admissible only to the Complainant or the Respondent to DIRECTLY do so immediately after the Testimony of either of the Two is recorded by the ICC. For ICC, the proper action admissible is to SEEK Clarifications Only and Not Cross Question. Also, ICC should Refrain from /desist from Asking Leading Questions while seeking Clarification.
Point 6:- When is the complainant asked to present her witnesses? Can ICC cross question the witnesses? Do the witnesses needed to record their statement in presence of respondent?
Team Kritarth Spl Educator’s Clarification:- Immediately after recording of her Statement /Deposition by the ICC is completed. In fact, at the beginning, the ICC Presiding Officer must explain the Sequence of Steps to be followed for completing the Inquiry. YES, Statements of any Person/ Witnesses must always/invariably be recorded in the Presence of the Respondent and the Complainant present.
Point- 7:- Can the complainant/ respondent be questioned by ICC.
Team Kritarth Spl Educator’s Clarification:- As stated above, yes but in the nature of seeking Clarification
Point-8:- When the respondent cross examines the complainant, do this have to be done as per pre-approved (by ICC) questionnaire or he can question whatever he may want?
Team Kritarth Spl Educator’s Clarification:- Even Suggesting for Questionnaire is Perverse and is not in line with the Principles of Natural Justice. The Respondent or the Complainant should be given full opportunity to Cross-examine but it must be pertaining to the Points submitted and Not Extraneous/irrelevant.
Point-8:- Can ICC cross examine witnesses presented by the complainant and respondent
Team Kritarth Spl Educator’s Clarification: - As stated above, Cross-examination is allowed to the Complainant and or the Respondent only
Point- 9:- Please provide the steps of conducting inquiry.
Team Kritarth Spl Educator’s Clarification:-Conducting Internal Inquiry can be learnt only By DOING Inquiry Proceedings as per laid down Procedures, just as it were, as swimming cannot be learnt by reading a Booklet on Swimming, one must get inside the water body to swim.
And that is the Sole Objective of the SHWW Act 2013 and the Rules since gazetted to Train the ICC Members to perform their Duties, Responsibilities and Role assigned to them by the Law, namely SHWW (P,P &R) Act 2013.
You are and other ICC Members are Welcome to undergo the Twin Programs mandatory under SHWW Act 2013
Harsh K Sharan XLRI Alumnus
Spl Educator PoSH Programs, Kritarth Consulting Pvt Ltd
, / 09880 299 349
20th March 2016