---Inquiry Procedure relating to Sexual Harassment Complaints---
Inquiry into Sexual Harassment Complaints filed by the Aggrieved Woman-Complainant, must be conducted by the Internal Committee in accordance with the i) Principles of Natural Justice and the ii) Service Rules or Standing Orders, applicable to the “Respondent”.
The Inquiry Procedures & the Order of Events for such Internal Inquiries to be conducted by the Internal Committee, have been long ago laid down by our Judiciary hence the Procedures must be followed, properly and faithfully, in letter & spirit.
For Fair, Proper and Just Inquiry Procedures, the “stages”/phases involved are:
Pre-Inquiry Stage (Phase-1): Must Action-Steps:
I.First, Show-Cause Notice or Charge-Sheet or Explanation-seeking Letter must be issued, with proper Signature, Date & Reference, to Respondent, framed properly & sufficiently precisely, based on “Contents” of the S H Complaint or Report containing Date, Time & Place of occurrence/incidents/acts of S H Complainant was allegedly subjected to; informing the Respondent that the alleged acts of SH amount to Acts of Misconduct on the part of Respondent as per Service Rules or Standing Orders applicable to Respondent, for which Respondent is liable to Punishment as per Service Rules or Standing Orders and or to also Penalty/Prosecution under IPC for an “Offence”; and therefore Respondent is being given reasonable opportunity to submit a Written Explanation/Reply-in-defence as to “why” further Disciplinary Action should not be taken for alleged acts of Misconduct levelled. It is expedient to forward a Xerox /photocopy of the SH Complaint as enclosure to the Show-Cause Notice/Charge-Sheet/Explanation Letter, to enable the Respondent to prepare his defence/Explanation/Reply advising Respondent to submit the same to the Employer/Punishing Authority/ Disciplining Authority;
II. Such Notice or Letter be marked “Confidential” and Respondent informed that “making known the identity of the Complainant or the Respondent is Unlawful, hence prohibited, Punishable (Section-16 & 17 of SHWW Act 2013;
III. On receipt of Written Explanation/Reply from Respondent, the Employer /Punishing Authority should forward the same, with a Forwarding Letter, to the Internal Committee, requesting them to hold necessary IC Proceedings into the SH Complaint and submit/forward their Report with “Definite” and “Conclusive” Findings with “Recommendations, if any; and
IV. The Employer/Disciplining Authority must provide all assistance to the Internal Committee in conducting their Proceedings, including releasing the “Complainant or the Respondent or their respective Witnesses or Evidence /necessary Documents sought by the Internal Committee, in fulfilment of Duties of Employer Section-19 of the said Act 2013;
The Supreme Court of India in their Order repeated that No Disciplinary Action can be lawfully, ethically and or morally taken without taking following Action-Steps:--
1. The Employee Must Be informed of the "grounds” on which Disciplinary Action is sought to be taken by the Employer, against him/her/or; and
2. The Principles of Natural Justice is complied with.
The above quoted Order our Honourable Supreme Court's Ruling/Judgement was delivered in 1998 in Uptron India Ltd case (AIR SC 1681).
Inquiry Stage (Phase-2): Action-Steps by Internal Committee:
1. Issue Notices, in consultations with IC Members & Member (External), to the Complainant and the Respondent, informing them of scheduled Date, Time and Place of IC Proceedings to be held into the SH Complaint and the Explanation submitted thereto advising them to attend and fully participate in the scheduled IC Proceedings, along with their Witnesses and or Evidence (Documentary or in other form) they wish to examine/produce before the IC;
2. On commencement of IC Proceedings, IC to introduce themselves, Explain the Principles of Natural Justice, Order of Events to be followed etc;
3. Internal Committee to First Record the Testimonies of the Complainant followed by her Cross-examination by Respondent, then of her Witnesses, one by one and Respondent given opportunity to Crossexamine each Witness, followed by Recording Testimonies of Witnesses of Respondent, and Complainant given Opportunity to Cross-examine each of them and lastly the Recording of Testimony of Respondent after which Complainant may crossexamine the Respondent;
4. Each Page of the Testimonies recorded by Internal Committee in presence of the Complainant and the Respondent, must be Attested/Signed by all present;
5. In case, either the Complainant or the Respondent, abstain from or absents from Participating in IC Inquiry Proceedings, for whatsoever reason, reasonable/acceptable to the IC after the IC has given sufficient (Two or Three as in SR or SO) opportunity to Resume/attend, the IC can proceed with ex parte Inquiry;
6. Inquiry Proceedings must be completed/concluded within Ninety (90) Calendar Days; and
7. The Inquiry Papers/Documents be kept in custody of the IC.
Post-Inquiry Stage (Phase-2): Action-Steps by Internal Committee
1.The Internal Committee (all Members and Presiding Officer) should sign each Page of the Inquiry Report with Findings and or Recommendation (3 sets) and forwarded the same to the Employer/Disciplinary Authority for further Disciplinary Action including deciding Proportionate Punishment as prescribed in the SR or SO; and simultaneously
2.One copy of the Inquiry Report with Findings should be issued by the Internal Committee to the Complainant as well as the Respondent for them to submit their “Representation” if any and on considering the Representation received the IC shall inform them about IC’s Final take;
3.Internal Committee is neither the Disciplinary Authority (Employer), hence it has No Jurisdiction to / can never issue the Show-Cause Notice/Charge-sheet/Explanation Letter nor is empowered to Award/Issue Punishment Letter;
4. In case the SH Complaint is found by the IC, “False”, “Frivolous” or “Malicious”, it shall so state/Recommend and the Employer shall initiate Disciplinary Action against her;
The aforesaid Procedure is in conformity with the “settled Laws” relating to the Internal Inquiry and the Provisions of SHWW (P, P &R) Act 2013 (Section-9, 10, 11, 12, 13 etc). It is important to take Note of the Rule 7 Sub-Rule 6 which prohibits and disallows any Party to the IC Inquiry Proceedings, to bring in Legal Practitioner 09,/Legally Trained Person to represent any of them and as a corollary it is Fair, Proper and Just for Employers not to Nominate any Legally Trained Person ( Employee or otherwise) as Member or Presiding Officer of the Internal Committee constitute under Section- 4 of SHWW (P,P &R) Act 2013, else such discretion shall be lopsided and may vitiate the Inquiry Proceedings held by the Internal Committee.
For any Inquiry or Clarification, please contact Kritarth Team of Spl Educators & Serving Member (External) PAN India
30 January 2019 30th January 2019 From India, Delhi