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"Is it Fair, Just or Proper to Exclude External Member Internal Committee from IC Proceedings"

“Necessity is the Mother of Invention”

Instances are many and increasing where External Member of Internal Committees, for all practical purposes, are being Excluded from IC Free Functioning by not allowing to be associated with or Involved with scheduled Proceedings of Internal Committees on some pretext or other, often flimsy. This deft dispensation defeats the Purpose of Compulsory Nomination of External Member on Internal Committees as mandated by Section-4 of SHWW (P,P &R) Act 2013 in spite of a) a Legal Requirement Companies (Accounts) Amended Rules where Board of Directors file Declaration that Internal Committees at their Workplace have been Constituted and that b) Internal Committees File Annual Report for each Calendar year (Section-21) before the District Officer, a Copy of which is incorporated in Company’s Annual Report filed before ROCs. Many ICs are thus on Paper only, a Paper Tiger virtually.

The Office of External Member, Internal Committees is and remains an Indispensable Invention of Hon’ble Supreme Court of India. Alas, many did not yet embrace this Unique Invention resulting in recurrence of painful phenomenon of Sexual Harassment, Organization Problem of considerable Magnitude and an unsolved Social Problem hurting Families and Parents.

The Necessity and Need of “a Third Party” was to prevent the Possibility of any undue pressure or influence from Senior Levels (of the concerned Establishment). Hon’ble Supreme Court in 1997 ordered all Employers to involve “a Third Party” and constitute a Committee to deal with SH. But past Record is Bleak of obeying SC’s Ruling which are to be treated as Laws passed by Parliament as per Article 141 of Bharatiya Samvidhan. This much about Honoring our Own Constitution.

The Aim to Root out undue intervention, influence or pressure Building failed and the Worst Sufferers are Business-Starters, Entrepreneurs who wanted to Create Wealth and Wellbeing of all Stakeholders at the hands of their own Management Group.

The Office of External Member, Internal Committees was conceieved and erected by the Architects of Landmark Vishakha Judgement in 1997 (SC 3011, AIR 1997 Dec) by Supreme Court Justice Mrs. Sujata Manohar, in company with Chief Justice J N Verma (Late) and Justice BN Kirpal (SC 3011, AIR 1997 Dec). Their Key Construct was an Indispensable Invention of the Institution of “A Third Party” renamed as External Member Internal Committees in Section-4 of SHWW (P, P &R) Act 2013. Exclusion of External Member Internal Committee, thus violates the Laws and Tarnish the Trustworthiness of such accountable ICs and Employers who nominated such ICs and are Questionable.

All worthy Employers and all worthy Internal Committees must obey the Laws, faithfully and properly in letter and in Spirit setting Examples for their Employees to Be Better than Before to become Good to Great.

Always associate the External Member of Internal Committees to ensure Free & Full Functioning of the ICs.

Harsh Kumar Sharan,

Spl Educator PoSH Programs,

Kritarth Consulting Team

2.7.2020

From India, Delhi
Hi Harsh,

It is correct that external member of ICC can not be excluded. This defeats the whole purpose of the act. The 'external member' was kept to ensure that the victims of sexual harassment at workplace get a fair hearing. Moreover, the requirement that such external member shall either be a social worker or a person conversant with the criminal and civil laws also has to be fulfilled. This requirement ensures that the external member is 'sensitive' to the issues pertaining to working women. If any employers are conveniently excluding external members, strict actions can be taken against them, including but not limited to approaching the local complaints committee. Moreover, women also have recourses available under Indian Penal Code, 1860 for sexual harassment / outraging the modesty of a woman against the perpetrator. If the Employer is shielding the perpetrator, civil/criminal actions can be taken against the employer also.

Meera Kaura Patel

Partner, LawCircle

Email-

From India, Delhi
A few ICs do not involve EM during enquiry as I know. They share the draft enquiry report with the EM for reviewing and to seek consent on the recommendation/s they have arrived at.
usha.
external member, ICs

From India, Delhi
Thank you for your Valuable, Very Relevant Comments on the Alarming Trend of Few Internal Committees willfully Not Associating the IC Member External which Act or Initiative are Blatant Breach of SHWW (P,P &R) Act 2013 For which the Presiding Officer and other TWO Employee-Members are liable to Punishment under Section-4 of the Act of 2013 including their Instant Removal from the Office of respective ICs and also under Laws of our Land For the Offence of Obstructing Due Process of Law & Delivery of Justice rather for Patent Miscarriage of Justice; and

Moreover, such Employers of such Workplaces / Establishments where the aforesaid Defaulting ICs are so illegitimately Malfunctioning are also, concurrently Liable to Penal Actions Listed under Sections 26 of the said Act of 2013 for their Gross Failure of Discharging their Duties as Listed in Section-19 including Employer's Duty to Monitor Submission of Reports including IC Inquiry Reports with Findings & Recommendations

In this connection, I, for and on behalf of Kritarth Team of Spl Educators (as defined in SHWW (P,P &R) Rules 2013, gazetted on 9.12.2013) draw your /All Readers 'Attention to the Honorable Bombay High Court's Ruling/Judgement/Verdict/Guideline in 2018 ( if I recall) where it was Clarified that ALL Members of an/the IC must attend, must be present and Must Fully Participate in Internal Committee Proceedings throughout.

In another Judgement/Ruling/ Verdict Honorable Madras High Court Ordered Inquiry Report of ONLY Two Members IC in a SH Complaint, as null and void and hence ordered Full I Committee Members Proceedings.

I request all readers of this Post to exercise due discretion by examining the referred to HC Orders and then form their opinion.

Harsh Kumar Sharan, Kritarth Consulting Pvt. Ltd,

Bengaluru Office. 8th Sept 2020.

#holistichr #allaboutposh #poshmaster

From India, Delhi
Dear All,

I had the opportunity of reading the above discussion in detail. While I agree with some of you that the intention of law makers was possibly to include the External Member (“EM”) in each & every investigation, the way this law is drafted (at present) does provide a loophole (a legal lacuna – if you may!) to organisations to not include the EM in every aspect of the inquiry process.

Keeping our noble sentiments aside, let us now look at the present drafting of the POSH Act, 2013 and the POSH Rules, 2013.

Sec 7(7) of the Rules, talking about the required ‘quorum’ during an investigation, states – “In conducting the inquiry, a minimum of three Members of the Complaints Committee including the Presiding Officer or the Chairperson, as the case may be, shall be present.” – Now, PLEASE NOTE THAT WHILE THE PRESENCE OF THE PRESIDING OFFICER OR THE CHAIRPERSON HAS BEEN MADE MANDATORY, THE PRESENCE OF THE EXTERNAL MEMBER HAS NOT BEEN MADE COMPULSARY. If this was actually the intention of the law makers, nothing stopped them from mentioning that the PRESIDING OFFICER and the EXTERNAL MEMBER are both necessary.

Good or bad, this is the law at present, which we cannot disagree. Happy to learn if there is even a SINGLE judgement which mentions that all the IC members – and specifically the EXTERNAL MEMBER has to be part of every investigation – else the investigation report shall be vitiated. The judgements quoted above, respectfully, are not directly on this point – they only mention the lack of ‘quorum’ i.e. not have a minimum of 3 members as mentioned in the POSH Rules, stated above. They do not mention that the IC must include an EXTERNAL MEMBER during every investigation.

Further, lets also clear the air around the qualifications of an EXTERNAL MEMBER. Again, people tend to confuse the specific qualifications required in case of an EXTERNAL MEMBER of an INTERNAL COMMITTEE with that of the LOCAL COMMITTEE. Let us understand this more, as below:

Chapter II, Section 4(2)(c)of the POSH Act, 2013 dealing with qualification of an EXTERNAL MEMBER while constituting the INTERNAL COMMITTEE (note this important here – we are discussing about internal committee not a local committee) states that “one member from amongst non-Governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment”.

PLEASE NOTE HERE THAT NO REQUIREMENT IS MENTIONED REGARDING THE EXTERNAL MEMBER BEING CONVERSANT WITH CRIMINAL AND CIVIL LAWS in case of INTERNAL COMMITTEE.

Also, then look at Chapter III, Section 7 deals with constitution of the LOCAL COMMITTEE (NOT INTERNAL COMMITTEE). Section 7(1)(c) of the POSH Act, 2013 states that “two Members, of whom at least one shall be a woman, to be nominated from amongst such non-governmental organizations or associations committed to the cause of women OR A PERSON FAMILIAR WITH THE ISSUES RELATING TO SEXUAL HARASSMENT, which may be prescribed: PROVIDED THAT AT LEAST ONE OF THE NOMINEES SHOULD, PREFERABLY, HAVE A BACKGROUND IN LAW OR LEGAL KNOWLEDGE”

Here the words “which may be prescribed” are further explained under Section 4 of the POSH Rules, which states as below:

“Person familiar with issues relating to sexual harassment. – Person familiar with the issues relating to sexual harassment for the PURPOSE OF CLAUSE (c) OF SUB-SECTION (1) OF SECTION 7 shall be a person who has expertise on issues relating to sexual harassment and may include any of the following.- a. a social worker with at least five years’ experience in the field of social work which leads to creation of societal conditions favourable towards empowerment of women and in particular in addressing workplace sexual harassment; b. a person who is familiar with labour, service, civil or criminal law.

Thus, the above requirements regarding an EXTERNAL MEMBER having legal knowledge etc. are only for an EXTERNAL MEMBER of a LOCAL COMMITTEE and not of an INTERNAL COMMITTEE. This mistake is made by many people. For further clarity, it would be beneficial to refer the case of “Ruchika Singh Chhabra vs M/S. Air France India And Anr. on 30 May 2018” High Court of Delhi. This point is very clearly explained there.

I hope this is useful. Happy to hear any other thoughts on the matter.

From India, Gurgaon
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