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Dinesh Divekar

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Dinesh Divekar

Dear members,
A case study on sexual harassment has been uploaded on one of the WA groups. I have pasted it below:
Brief of the Case
Ms Beena Kumari had joined Management Trainee - Marketing in the company in Aug-2017 at Pune post completion of her PG in Marketing from reputed Management Institute. She is passionate about Marketing.
On 10th April 2018, one of the Distributor has asked her to visit his office for understanding product range. She had visited the place of Distributor and explained him the product range of company. The distributor told her to come again tomorrow so that he will place big order for all products.
In order to get the big order and achieve targets, Beena Kumari visited the office of Distributor next day. When she reached to the office, there were another 3 persons were sitting in the office of Distributor. The Distributor told her that they are placing orders for all products worth crores of rupees. On hearing the said news she was so happy and thanking the distributor. Later on distributor had offered her cold drink. On tasting the same she had realised that something is wrong and she insisted to leave the place. However she was not allowed to leave the office and they had made an attempt to abuse her sexually and....
Somehow she was successful to escape the situation. Next day, she had submitted her resignation to her supervisor by explaining the incidence. Management is willing to help her to file complaint in police station however she does not want to do it due to social barriers.
In view of the above, as a HR Head, the member is seeking advice on the following queries:
1. How would you deal with the situation?
2. Whether will you refer this case to Internal Committee for further investigation?
3. What are the preventive measures would you take to prevent such incidences?
4. Should we accept the resignation of Beena Kumari?
5. Any other inputs.
Request all members to kindly give your views.
Raosaheb Kangane
HR Federation of India
Managing Committee Team

From India, Bangalore
Dinesh Divekar
Business Mentor, Consultant And Trainer
Kritarth Consulting
Posh Programs; Hr Management Consultants

Kritarth Consulting

Observations of Spl Educators of Kritarth Consulting Team on the Case Study circulated by Raosaheb Kangane, HR Federation of India,
---Every Employer of Every Workplace in India is Legally Duty-bound to "i) Provide Protection to Women from Sexual Harassment at Workplace and ii)Prevent, Prohibit and Redress of Complaints of Sexual Harassment and matters connected therewith and incidental thereto.
There is No Exemption or Immunity, to any Employer, whatsoever to any Employer/ Management. In short, Every Employer, as defined in the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act 2013, is Legally Liable to Create a Safe and Secure Workplace Where No Woman Shall Be Subjected to Sexual Harassment.
In the Case Study under reference, the Employer of the Establishment/Institution that employed the Aggrieved Woman, named in the Case, failed in his/her Duty to provide Protection to her and therefore is liable to be levied Penalties stipulated in the Section-26 of the said Act of 2013;
The Employer is also liable for abetting the violation of the Aggrieved Woman's Fundamental Rights namely Right to Life with Dignity as guaranteed in our Constitution and the Right to Practice/pursue any Profession/avocation etc.
The Employer, in faithful and proper fulfillment of his/her Duty under Section-19 (g) of the SHWW Act of 2013, at this stage even must provide
all reasonable assistance to the Aggrieved Woman who is declining to raise/submit Written Complaint for any reason whatsoever, best known to her, to lodge/File an FIR under IPC Sections.
Since the Employer under reference failed in his/her Duty to provide Protection to the Aggrieved Woman, s/he need not wait for mere Technical Formality of receiving a Formal Written Complaint or in absence thereof await its submission but must proceed with asking one of its Executive or One of the Internal Committee Member in his/her Establishment to conduct a prima facie Fact Finding Preliminary Inquiry to ascertain the Facts/Details and based on which must Immediately refer the SH Complaint to the Chairperson of the Local Committee in whose jurisdiction the
alleged Harassers Workplace is located. The LOCAL Committee is empowered to deal with SH Complaints against the Head of such Establishment's Workplace
Her Employer should not act upon the Resignation Letter since submitted till her SH Complaint is duly and diligently disposed off and the Employer/the Management must get her Medically Examined thoroughly for assessment of injuries if any inflicted upon the Aggrieved Woman.
Disciplinary Action must immediately be initiated against the Immediate Superiors of the Aggrieved Woman who, individually and collectively failed to provide Protection knowing fully well that she (Aggrieved Woman) was deployed by them to visit the Workplace of the Distributors or at any other Workplace to interact with him/them in furtherance of the Prospective Business Deal of the Supplier Establishment.
Also, to make the Superiors and all other Managers, Supervisors, and Employees AWARE of their Duties, the Employer must Quickly Organize Awareness Programs. And look and behold-- the IC Members of the Establishment where the Aggrieved Woman worked appear to be inactive, uninvolved???
Ignorance of the Law is No Bliss and let Every Employer realize that especially those who are Registered under the Companies Act 1956 and are required to File with the ROC their Company's Annual Return including Non-Financial Disclosure under Section-134.
We, the Spl Educators Team at Kritarth call upon all and Any Person who Supervise, Manage and Control the Workplace and all others to join Hands and act together in adopting Effective Mechanisms to Co-Creat a Safe and Secure Workplace Where No Woman shall be subjected to Sexual Harassment, anymore, forever.
Spl Educators Team Kritarth,
Bengaluru Service Center,
17th April 2018

From India, Delhi

Dear Dinesh Divekar,
There is not an iota of doubt that the employer has failed in his duty imposed upon him in relation to the POSH Act, 2013.
But I am not in complete agreement with the advice rendered by my friend Kritarth. There may be various situations which may emerge from the followings and it could be an endless debate, however:-
1. Without a written Complaint from the "aggrieved woman", suo moto inquiry by IC may only lead it to suggest further precautionary measures to the employer. At the most the Contract with the Distributor may be clinched (although that may also have business repercussions as a suo moto action from one party without giving other party giving a chance to rebut the charge levied against him - civil or criminal - will have no meaning in the eye of law as it is devoid of any evidence.) Thus, in accordance with the rules laid down under the POSH Act, a written complaint is must from the aggrieved woman, for IC to take the matter in hand, which is missing in the present case.
2. The resignation of the "aggrieved woman" should be accepted otherwise the employee may file a complaint to the Magistrate under section 26 of the POSH Act attributing the charge of abatement on the part of employer. However, before accepting her resignation, she should be asked to state reason of tendering her resignation. If she tenders resignation on account of sexual harassment, the case must be referred to IC. If it is tendered for any other or personal reason, it should be accepted and her accounts settled. It is advisable that she should be asked reason of her resignation in writing so that the employer has an opportunity to say that despite asking, she did not disclose any sexual harassment or any lapse on the part of employer.
3. I agree to the other inputs given by Kritharth.

From India, Chandigarh
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