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---Is it “Fair”, “Just” and “Proper” to Nominate Legally-Trained Person as Internal Committee Member?-Point to Ponder----
Umpteen times, Employees pose a Question as to Why a Legally Trained Person (Employee with Law Degree or a Legal Practioner like an Advocate, Lawyer or Pleader), was nominated from amongst Employees as Employee-Member or as Non-Employee Member (External) on the Internal Committee constituted under Section-4 of the SHWW Act 2013;
Whereas Employees, themselves, in general, were Ordinary Person without any Law Degree, Legal Training and unfamiliar with Legalism or Legalistic approach/orientation, as it were?
Employees point out that the Women Complainant and the Respondent may feel disadvantaged in presence of “Legal Persona/Experts on the IC.
We often faced the aforesaid, Serving as IC Member (External) or as Spl Educator (as defined in Rule-2 (f)) conducting the Awareness Programs.
We know that as per Section-4, Sub-Section (2) (c) of the said Act 2013, One Member of Internal Committee (the 4th Member) is to be nominated from NGO or Associations committed to the cause of women or a Person familiar with the issues relating to sexual harassment.
Rule-4 defines/describes “the Person familiar with issues relating to Sexual Harassment as a “ Person Who has “expertise” on issues relating to SH and may include:
a) a Social Worker with at least five years experience in the field of Social Work which leads to the creation of societal conditions favorable towards the empowerment of women and in particular in addressing Workplace Sexual Harassment;
b) a Person familiar with Labour, Service, Civil or Criminal Law”.
It is pertinent to pinpoint that the Laws applicable to Sexual Harassment of Women at Workplace Nowhere mention, even Hint at the inclusion of and inducting any Legally Trained Person on the I C Functioning/ Proceedings.
In this context, it is expedient to examine the Rule-7 (6) framed under said Act of 2013 by the Central Govt. and gazetted on 9.12.2013 (Extraordinary Gazette No 593, Part II, Section-3, Sub-Sec-(4) under Section-29, GSR 769).
Rule-7, (6) reads as quoted below:
Quote: “The parties shall not be allowed to bring in any Legal Practitioner to represent them in their case at any stage of Proceedings before the Internal Committee”. Unquote.
In other words “No Legally Trained Person” ought to be directly and actively associated with and involved in any manner whatsoever with IC Proceedings.
Internal Committee is compulsorily constituted by Every Employer of Organizations in India under Section-4, SHWW (P, P &R) Act 2013.
Preponderance of Employees (3 out of Minimum 4 Members in Every Internal Committee) is the intended true Nature and Scope of the IC. One Member of Every Internal Committee has to be a Non-Employee-Outsider and is nominated by the Employer whereas other Members are “from amongst Employees”.
Kritarth Team is trying to locate the SC Ruling relevant to ‘inclusion” of a Legally Trained Person with Internal Inquiries where the Honourable Supreme Court of India held that it would be Unfair (hence Unlawful) to deny the Delinquent Employee a reasonable opportunity to be represented or assisted in his/her Defence by a Legally Trained Person i.e. a Lawyer, Advocate, Pleader,
Especially when the Employer approves of inclusion of a Legally Trained Person through Nomination or appointment, to be present and participating in Proceedings held by an Entity or Body constituted by the Employers, themselves for conducting such Internal Inquiries.
Kritarth Team of Spl Educators Honours the said Judgement of the Apex Court.
Kritarth Team would stand by the “rationale” that in case a Legally Trained Person is inducted as IC Presiding Officer or IC Employee-Member or IC Member (External) so nominated by the Employer, it would appear lopsided, uneven, tilted on one side and so be Unfair, Unjust and Improper to disallow the Complainant or the Respondent an opportunity to be represented by an equally Legally Trained Person during IC Proceedings applying and enforcing the said Rule 7 (6) against the Principles of Natural Justice.
It is well-said that Justice must be done and it must so appear that Justice has been done.
The Mandatory Programs for the Internal Committee Members are aimed at building the Capacity & Skills of the Members enabling them to Discharge their Duties, properly and faithfully in Letter and Spirit of the Laws applicable to Internal Committees.
Kritarth Team welcomes Professionals Views/Perspective in this regard.
Kritarth Team of Spl Educators,
15.7.2018

From India, Delhi
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