Kritarth ConsultingThe Write-Up posted in CiteHR on 26.12.18 "captioned " Lessons From Genpact Sexual Harassment Case By Anil Kaushik" contains certain Anomlies, aberration and Factual Errors as are noted below:
1. Internal Committee constituted by Employer under Section-4 of the "Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act 2013 has "no locus standi" nor "Obligation" whatsoever to issue a "Show-Cause " the Respondent with copy of Sexual Harassment Complaint or Allegations asking him to reply to the Complaints/Allegations as written in Lesson-1 .
The Internal Committeee is not purported to be a Disciplinary Authority
The Employer has the absolute, Non-Negotiable, Prerogative, Priviledge, Right to intiate Disciplinary Actionagainst any Acts of Misconduct within the meaning of the Standing Orders or the Services Rules which are framed under respective Laws authrizing the Employer to do so. For and on behalf of the Employer, the Occupier or any other Agent commonly referred to as Management, the Manager, the Punishing Authority do initiate Disciplinary Action including Issuing the Show-Cause Notice/Letter or Charge-Sheet or Explanantion Letter
i) informing him/her of the "allegation" leveled /reported against him or her and
ii) asking/directing the concerned Employed Person to submit Written Explanation
as to Why necessary further Disciplinary Action should not be taken against
him/her for the alleged act of Misconduct and
iii) on receipt of the Written Explanation /Reply in defence or otherwise,
iv) the SH Complaint with connectd Documents is forwarded to the Internal Committee addressed to the Presiding Officer to act according to Sectios- 9, 10, 11 etc of the SHWW Act 2013 and the Rules framed thereunder and gazetted on 9.12.2013; and
v) Forward/submit teir Definite and Conclusive Findings for further Disciplinary Action to be determined by the Employer (the Punishing Authority)
The Employer decides on Quantum of Proportionate Punishment or Condonation as the Findings may be. The IC Findings is whether the SH Complaint was Found True or Found False , Frivolous and Malicicious with reasons supporting the Findings.
2. Not only the Aggrieved Woman-Complainant can Lodge/submit her SH Complaints, the aforesaid Act provides for other Persons so authorized to subit , on her behalf her SH Complaint for neceesary Action including Inquiries.
3. Now that SHe Box-an On-line e- Portal- has since been launched in Nov 2017, any SH Complaint can be Registered on-line and the Ministry of Women & Child Development, the Monitoring Authority is active and shall forward the Registered SH Complaint for necessary "Redressal" as stipulated in the Act of 2013.
In view of the the aforesaid, the " Opinion" of the Author of the Writeup that ........
......the Complaints, first, should have gone to IC,
.....then it was for IC Chairperson or any member as may be deputed to
.... initially investigate in to the complaints to assess the correctness and gravity,
.... interview the complainants in camera and
.....if prima facie the complaints were found to have case of SH...".
is invalid and and travesty of Justice. The Internal Committee Presiding Officer is titled/addreesed as such whereas the Local Committee has the Chairperson.
The IC is an Independent Legal Entity created to conduct their own Proceedings in accordance with the Principles of Natural Justice without Need to assess the "correctness" and or "gravity" of the SH Complaint/Allegations before the Committee proceeding with " its Prime Duty & Responsibility to " ascertain the facts of the SH Complaint"; there is No Interview as such made out, in camera for the entire IC Proceedings ought to be /must be in line with Principles of Natural Justice hwen may be either the Aggrieved Woman-Complainant and or the Respondent insist on Examining and or Cross-Examining their respective Witnesses and or Documentary Evidemce.
Every Employer is duty-bound to constitute the IC under Section-4 and File Annual Report of action taken under Section-22. Hence, the " exhortation", as it were, ..... that "Instead of preferring for redressal mechanism only" appearing in Lesson -2 is uncalled for.
Employers have No Chioce, No Exemtion but to constitute the IC. Howere, no stone should be left unturned/ No efforts be spraed to seek "Collaboration" of all the stake-holders in the Orga/Esta towards Co-Creating a "Safe and Secure Workplace Where No Women Shall Be Subjected to Sexual Harassment and More Importantly the Fundamental Rights of Women to Live with Dignity is Protected, Honoured in Letter and Spirit, faithfully and properly.
The Acts which shall constitute Sexual Harassment and the Circumstances, Likly to lead to /causing SH are Crystal Clear as stipulated in the aforesai Act 2013 and though "illustrative' and not "exhaustive"
Sh means and includes any act or Behiviour, veral or Non-verbal or otherwise Which is or are Unwelcome and or Humiliating to her likely to affect her Health and Sense of Safety.
The definition is almost all encompassing/ covering any Act etc which theAggrieved Woman defines as or describes as Unwelcome and or Humiliating to her and SHE is now made aware that any False, Frivolous and Malicious SH Complaints /allegation reported/lodged by her and found to be so by the IC shall be punishable, shall be an Offence, too n cthe evnt an Appeal before the Judiciary is filed and the Judciciary concludes so considering the ?materials -on-record."
This is for reveie /consideration. Risks on the part of few of the Readers of the Write-Up is not ruled out who may "Learn" /internalize factual error
Kritarth Team of Spl Educators,
30 Dec 2018,
From India, Delhi
anil kaushikDear Sir,
thanks for pointing out technical "errors". Having no intent to enter into any argument on the issue on public platform, As you are entitled to have your own opinion and understanding on the subject, I should also be allowed to have my opinion and understanding on the issue raised.
From India, Delhi
vsrlawIn a Workplace 'Just because a girl accuses someone of sexual harassment it does not mean that person should be held guilty.''A man must be given a fair chance.''Even if he is able to clear his name in the case, he would not be able to face the world.'How is the POSH Act going to answer this is point of debate now. Maybe a Confidentiality and Secrecy provision should be introduced in the Act . It should introduce an express provision to protect confidentiality of POSH Act proceedings. The only permitted exception to the confidentiality obligation should be in implementation and enforcement of the order of the POSH In-House Commitee. A re-look is needed from the fall-out of this case .
akatrapDear Anil sir,
We are reviewing our Policy on Prevention on Sexual Harassment.
We are adding format of Harassment complaint form, Committee Reports in the Annexure of the policy.
I am stuck with format of Statement of Allegation or show-cause notice to the Harasser.
Can you able to share me format of Statement of Allegation or show-cause notice to the Harasser?
From India, Mumbai