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Anonymous
10

Dear Colleagues,

What is the legal position regarding the right of the Management to modify the recommended punishment by the IC under POSH Act? Is Management bound to follow the recommendation or can award either more harsh punishment or lesser punishment?

Thanks

From India, Delhi
Madhu.T.K
4198

The management cannot modify the recommendations of the Internal Committee formed under The Sexual Harassment of Women at Workplace Act (Prevention, Prohibition, and Redressal Act, ie POSH Act. The respondent or the complainant can file an appeal if the punishment awarded is not proper. But since the employer is not a party to the incident he cannot interfere in the proceedings or the recommendations of the Committee. Moreover, if the employer fails to award the punishment within 60 days he can be booked for non compliance of the Act.
From India, Kannur
Dinesh Divekar
7855

Mr Madhu TK Sir,

I have a query on the recommendation of the punishment by the Internal Committee (IC).

Let us compare it with the domestic enquiry conducted by the company for misconduct by an employee other than sexual harassment. The Enquiry Officer (EO) is expected to conduct the investigation and bring to light the failures, be they human or systemic failures. Earlier, I read on this forum that the EO does not have the power to recommend the punishment. It is the prerogative of the management to decide on the nature and quantum of punishment.

In contrast, does the POSH, 2013 empower the IC to recommend punishment to the accused? I would be thankful if you could shed light on this topic.

Regards,

Dinesh Divekar

From India, Bangalore
raghunath_bv
152

Hi,

The legal position regarding the right of management to modify the recommended punishment by the Internal Committee (IC) under the Prevention of Sexual Harassment (POSH) Act, 2013, is nuanced and has been addressed through various legal interpretations and judgments.

Legal Framework
Under the POSH Act, the Internal Committee (IC) is established to handle complaints of sexual harassment in the workplace. The IC conducts inquiries and makes recommendations based on its findings. The relevant provisions are:

Section 13(3) of the POSH Act: After completing the inquiry, the IC submits its report to the employer, recommending the action to be taken against the respondent.
Section 13(4) of the POSH Act: It states that the employer shall act upon the recommendation within 60 days of its receipt.

Judicial Interpretations
Several judicial pronouncements have clarified the extent of the employer's discretion in modifying the IC's recommendations:

Employer's Discretion:
Courts have generally upheld that while the IC's recommendations are significant and should be given due weight, they are not binding on the employer. The employer has the discretion to modify the recommended punishment. This discretion must, however, be exercised judiciously and reasonably, with a clear rationale provided for any modifications.

Principle of Proportionality:
The punishment awarded should be proportionate to the offense. If the employer decides to award a harsher or lesser punishment, it must be justifiable and in line with principles of natural justice. Arbitrary or capricious deviations from the IC's recommendations can be challenged in courts.

Judicial Review:
The decisions of the employer, including any modifications to the IC's recommendations, are subject to judicial review. If an employee believes that the employer's decision is unreasonable or unjust, they can challenge it in a court of law. Courts have intervened in cases where they found that the employer's action was either too harsh or too lenient compared to the IC's recommendations.

Key Judgments
Vishaka & Ors vs State of Rajasthan (1997): This landmark case laid the foundation for addressing sexual harassment in the workplace in India. While it predates the POSH Act, the principles of due process and fairness established in this case influence how IC recommendations and employer actions are viewed.
Ruchika Singh Chhabra vs Air France India and Another (2018): In this case, the Delhi High Court emphasized that while the IC's role is crucial, the final disciplinary authority rests with the employer. The court held that the employer could modify the IC's recommendations, provided the reasons for such modifications are well-documented and justified.

Conclusion
In summary, while the recommendations of the IC under the POSH Act are significant and should be given considerable weight, the employer is not strictly bound to follow them. The management has the right to modify the recommended punishment, either to increase or decrease it, but this discretion must be exercised judiciously, reasonably, and with clear documentation of the rationale behind any changes. Such decisions are subject to judicial review to ensure fairness and adherence to the principles of natural justice.

Thanks

From India, Bangalore
Madhu.T.K
4198

Divekar Sir, a domestic enquiry on a charge other than sexual harassment is different. A domestic enquiry is conducted not by a statutory body or committee but an enquiry on sexual harassment is conducted by a statutory committee, a committee to be formed as mandated by law, ie, PoSH Act. The proceedings of the PoSH Committee is expected to be intune with Code of Civil Procedure 1908, and they have the same powers as are vested in a civil court. As such they can pronounce the punishment. But an enquiry officer cannot award a punishment, but the punishment is decided by the Disciplinary authority or the employer on the basis of the report of the enquiry officer. A domestic enquiry is conducted just to ensure that the delinquent is given sufficient opportunities to be heard before an action is taken against him.
From India, Kannur
Dinesh Divekar
7855

Dear Madhu Sir, Thanks for the clarification. Regards, Dinesh Divekar
From India, Bangalore
kamlesh111
10

Thanks to all, particularly Mr Raghunath who has cited case laws related to the query, and hence based on the case of Ruchika Singh cited by him, it is clear that the employer has got power to review the punishment recommended by IC if there are justifiable and convincing reasons.

Regards,

From India, Delhi
Madhu.T.K
4198

Ruchika Singh Chhabra vs Air France India and Another (2018 LLR 697) speaks about the constitutional validity of the ICC formed by the respondents, ie, Air France India. The ICC formed by the employer consisted of an outside member Mr. Michael Dias, an advocate and the secretary of the Employers' Association. He was not associated with any NGO dealing with women issues but was only a labour law lawyer. As per section 4 (2)(c) of the PoSH Act, the member from outside the organisation should be a person from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. The court also found that the constitution of the ICC by Air France did not satisfy the basic requirements of the Committee and declared that and all its resultant proceedings, including the report submitted by it were invalid. The court also directed that the ICC should be reconstituted in strict compliance with the requirements under law within thirty days and the committee should conduct its inquiry afresh.

In this case, nowhere it is said that the employer can modify the findings and recommendations of the ICC. I am not sure if there is any other observation by any Court that the recommendations by the ICC can be modified by the EMPLOYER. This is because of the reasons mentioned by me in my previous posts, that ICC is a statutory Committee and it follows the Code of Civil Procedure, and the employer is not at all a party to the case. In Ruchika's case, unfortunately, the employer (the key management persons) were trying to avoid the case and that was why Ruchika was asked to resign and go within half an hour and that also without taking her personal belongings from the office. It was with the help of Women Cell and the Police that she collected her personal belongings from the office. When she found that the ICC would not conducted the enquiry properly, she filed a complaint before the Court. Though the lower court dismissed it citing jurisdictional issues, the High Court allowed the appeal. Thus the appeal was all about jurisdiction and the validity of the ICC and noting else. A copy of the verdict is attached. you can read the verdict and then post your comments here.

From India, Kannur
Attached Files (Download Requires Membership)
File Type: pdf PoSH-ICC-Member from NGO-AIR France case.pdf (263.8 KB, 0 views)

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