Dear Clarification Seeker,
Team Kritarth's Response
Point 1: I am a member of an Internal Complaints Committee on Sexual Harassment in a company. We are in the process of conducting an inquiry. I need guidance to clear the following doubts.
Team Kritarth's Special Educator's Clarification: The ICC members must compulsorily attend two programs organized by your employer (read the Occupier, the Factory Manager, the Manager named in the Establishment Certificate, or the HOD as the case may be) and conducted by the Special Educator as defined in the Sexual Harassment of Women (P.P & R) Act 2013 and the Rules gazetted. These two programs, namely the Orientation Program and the Capacity & Skills Building Programs, are legally compulsory to be held, and proper records must be maintained for inclusion in the Annual Statutory Report to be prepared and filed by the ICC Presiding Officer for calendar years 2013, 2014, 2015 onwards. This is for monitoring and inspection by government authorities and for forwarding the report to the employer so that in the Director's Annual Report for the financial years, the directors make disclosure under Section 134 of the Companies Act.
The inquiry by the ICC must be conducted in accordance with the principles of natural justice. Your company/establishment must have by now complied with the above legal obligations. If not, please quickly initiate action steps to ask the employer/head of the institution to organize the twin programs for ICC so that you become thoroughly prepared to discharge your legal duties properly and faithfully. Failing which, anyhow, the inquiry shall be held by the law as a bad inquiry, constituting dereliction of duties on the part of the ICC members conducting the said inquiry.
Point 2: The complaint has been filed, and the respondent submitted the reply. The respondent was given the right to have a colleague present his case as his representative. Can the same rights be given to the complainant?
Team Kritarth's Special Educator's Clarification: Most certainly, yes, because your ICC allowed this privilege to the respondent. Henceforth, keep in view the legal provision that no legally trained person (lawyer, advocate) should ever be associated with ICC's internal inquiry proceedings.
Point 3: In the first hearing, the complainant is asked to present the case. Is this required to be done in the presence of the respondent? Can she be allowed to present further details regarding complaints made in the original complaint, like examples of past incidents supporting the claims made in the complaint?
Team Kritarth's Clarification: Any testimonies/statements/deposition either by the aggrieved woman complainant or the respondent or their witnesses or admission of evidence for examination must necessarily be done by the ICC in the presence of the other (complainant or the respondent). Further, the respondent was asked to submit an explanation to the complaint or complaints as stated earlier in the original (first) complaint, and in support of that, whatever evidence she wants to examine should be taken note of/recorded. Let her state whatever she wants to, but it will be fair and proper for the punishing authority to take into account the complaint in the so-called original complaint only. The principles of natural justice require that the respondent is given full opportunity to know additional complaints beforehand so that he can submit his explanations.
Point 4 and Point 5: Can the respondent be allowed to cross-examine her directly, or does it have to be done as replying to the statement given by the complainant?
Team Kritarth's Special Educator's Clarification: Cross-examination is a function/opportunity admissible only to the complainant or the respondent to directly do so immediately after the testimony of either of the two is recorded by the ICC. For ICC, the proper action admissible is to seek clarifications only and not cross-question. Also, ICC should refrain from/desist from asking leading questions while seeking clarification.
Point 6: When is the complainant asked to present her witnesses? Can ICC cross-question the witnesses? Do the witnesses need to record their statement in the presence of the respondent?
Team Kritarth's Special Educator's Clarification: Immediately after recording her statement/deposition by the ICC is completed. In fact, at the beginning, the ICC Presiding Officer must explain the sequence of steps to be followed for completing the inquiry. Yes, statements of any person/witnesses must always/invariably be recorded in the presence of the respondent and the complainant present.
Point 7: Can the complainant/respondent be questioned by ICC?
Team Kritarth's Special Educator's Clarification: As stated above, yes, but in the nature of seeking clarification.
Point 8: When the respondent cross-examines the complainant, does this have to be done as per a pre-approved (by ICC) questionnaire, or can he question whatever he may want?
Team Kritarth's Special Educator's Clarification: Even suggesting a questionnaire is perverse and is not in line with the principles of natural justice. The respondent or the complainant should be given full opportunity to cross-examine, but it must pertain to the points submitted and not extraneous/irrelevant.
Point 8: Can ICC cross-examine witnesses presented by the complainant and respondent?
Team Kritarth's Special Educator's Clarification: As stated above, cross-examination is allowed to the complainant and/or the respondent only.
Point 9: Please provide the steps of conducting an inquiry.
Team Kritarth's Special Educator's Clarification: Conducting an internal inquiry can be learned only by doing inquiry proceedings as per laid down procedures, just as swimming cannot be learned by reading a booklet on swimming; one must get inside the water body to swim. And that is the sole objective of the SHWW Act 2013 and the rules since gazetted to train the ICC members to perform their duties, responsibilities, and roles assigned to them by the law, namely SHWW (P,P & R) Act 2013. You and other ICC members are welcome to undergo the twin programs mandatory under SHWW Act 2013.
Regards, Harsh K Sharan
Special Educator PoSH Programs, Kritarth Consulting Pvt Ltd
[Email Removed For Privacy Reasons], [Email Removed For Privacy Reasons] / [Phone Number Removed For Privacy Reasons]
20th March 2016