Sexual Harassment case - complaint received from third party

We received a complaint letter (Third-party complaint) stating that she noticed many times, some group of male employees giving sexually suggestive comments on female employees who go for lunch to the canteen.

At this juncture, I need clarifications on:

1. Is it handled by ICC?
2. If yes, according to the POSH Act, what are the steps to be adapted for the inquiry?

With warm regards

Dear member,

What is happening at your company is horrible. Any woman, whether employed as a regular employee or as a casual, temporary, outsourced employee, has the right to live with dignity. If salacious comments are made against any woman employee, it merits investigation.

Before providing a solution to your challenge, please confirm what you mean by "third-party complaint."

Now, coming to the solution. Yes, the matter falls within the purview of POSH, and nowadays it is not ICC but just IC (Internal Committee). You may call the complainant to your office and ask her to gather material evidence. For this, she may sit reasonably close to the employee and record the conversation. Most Android phones have built-in apps for recording, and additional apps can be downloaded as well. However, instruct the woman employee to check the maximum duration for recording. If the comments have a sexual undertone, advise the woman employee to confront the individual making such remarks. While confronting such employees, she should be polite but firm and should not lose emotional control. Let her not reveal that the conversation is being recorded.

I suggest gathering material evidence to strengthen the case. Once she has incontrovertible evidence, she should approach HR once again with the audio clip. HR can then proceed as per the procedures outlined in the POSH Act.

Thanks,

Dinesh Divekar

You can just record the audio or audio with video and submit the same as proof to HR in writing. Make sure that the information is not passed on to anyone.

Any aggrieved woman can file a complaint of sexual harassment to IC within 3 months of the incident.
The period within which one can file the complaint can also be extended to another period of three months.
Also, where the aggrieved woman is unable to make a complaint due to her physical incapacity, her legal heir, relative or friend, co-worker, an officer of the National Commission for Women or State Women’s Commission may make a complaint to the IC on her behalf, with her permission.
Also, if the woman is suffering from mental incapacity, a qualified psychiatrist or psychologist or the guardian or authority under whose care she is receiving treatment or care, can file a complaint before the IC.
Besides inquiry into the matter by the team of IC. You bring the conspicious place under CC TV survilance. This is time to raise the confidence of the women employee by the management by holding a meeting to raise confidence that management is serious over the matter of harresment as reported.

Dear Mr. Prabhat Ranjan Mohanty,

You have outlined the procedure to file a complaint of sexual harassment, but many times proving the misconduct becomes difficult due to the lack of impeccable evidence. By the way, this is just a case of sexual innuendos. What about a proper rape case itself? The conviction rate in rape cases in India is just 25%.

Our judicial system has a tenet - "no person should be held guilty unless proved." While this tenet might have raised the moral standing of the judicial system, it has also helped the criminals as proving guilt is not that easy in India. Secondly, much depends on the forcefulness with which the cases are represented.

Thanks,

Dinesh Divekar

The receipt of a complaint is the starting point for action in a sexual harassment case. If the complaint names specific individuals, action can be initiated now itself. But if it is a general complaint without naming anyone, then further evidence, as suggested by Dinesh Divekar Sir, could be gathered.

If the complaint has come from a female employee who feels harassed, even if it was not directed against her, it suffices to be a complaint under the Act. Even if she is not targeted, it is not to be treated as a third-party complaint requiring further corroboration and can be proceeded by the Complaints Committee.

The complaint is to be treated as the charge sheet, and the accused employees can be called to explain their acts in the matter. The committee can also consider the need for any interim action like transferring the accused employees to work areas that are not on the way to the canteen, sending a strong message.

Thereafter, depending on the response of these employees, further steps towards adducing evidence in support of the charges of sexual harassment can be considered.

The company has to take cognizance of the complaint. Try to gather evidence about who is conducting this comment session about ladies. Talk to the ladies who go to the canteen and ask them whether they noticed or heard of any such innuendoes or comments. Discreetly watch over the area to uncover some facts, based on which an inquiry can be conducted, as laid down for sexual harassment cases. Right now, it is a third-party complaint, and the affected parties are silent or even unaware of the comments being made. However, there is no doubt that such activities are detrimental to the image of the company and the reputation of all individuals involved. Obtain evidence and take action.

Dear Mr. Divekar,
Thanks for shading light upon our systems. Your apprehension in the context is a time judged. What you or I can do in complex judiciary and policing situation? There is no alternative available rather to follow the existing system till something new and better thing is to come. There is absolutely flaw is not with judiciary rather with our social system and orthodox mind-set. Our people rather prefer to bear it than to fight for the cause.
[[ An example is set which is a true happening: Fictitious names are used
Raj, sr Design Engineer, 28 & Rina, 30(widow), House Keeping Staff under contractor. The office set-up remains closed on Saturday other than few as working day, result of which only 15% of total strength is avaible at office blocks and most of them goes to project site.
On one occasion Rina had a fall due to slip in office floor and was rescued by Raj and sent to medical for treatment as injury on head was serious. Rina remained in hospital for two weeks. After recovery from the injury Rima resumed her duty. After that incident Rima was considering Raj as her life saver and had developed weakness. In due course of time they have and had several physical meetings inside the work place as they find it lonely on weekend. But one tragedy happened on a particular day while they were intimacy noticed by the Security Officer came on check. The lady cried loudly seeing the person at door. She held Raj responsible and was forcefully keeping physical relation. Raj received sever punishment from the employer and finally Raj resigned from his job.]]
At the pretext we have to adhere the following lines for better result:
It’s easier to stop something happening in the first place than to repair the damage after it has happened. Therefore it is often said “prevention is better than cure (an ounce of prevention is worth a pound of cure)’’.

It is better to take timely action, or else the accused may get emboldened and may go further in their teasing/passing of remarks, etc. Take the lady into confidence and inquire if she will be willing to testify, as you want to put a logical end to this menace, but you need her full cooperation, including testifying before the committee set up by the company. If she can record the act before even coming to the committee, that will certainly nail the accused, but even otherwise, eyewitness accounts along with the victim's statement should suffice to proceed in this matter. Do not sit on the matter; get the issue fixed.

1. Thought No. One: I just pity the management. A third-party visitor tells you that your house is not in order, and until then, your officers did not smell anything? That too, happening very frequently!

2. Thought No. Two: Why always think that every such happening in that company was harassment? Perhaps light and comical non-veg jokes or some sort might be a matter of enjoyment for that ladies' group. I say so because no lady has complained.

3. My Advice: HR of that company should take immediate steps to stop such things. Whether it is a public place or a private place, no person has any right to break socially acceptable norms of dignity and good behavior, especially when one is in the company of a fairer class of society. Whether it is intentional, unintentional, or casual, whatever the reason, open taunting or under-belt comments are certainly subversive of discipline and so they have to be properly dealt with. Perhaps the reported matter may not be a matter of disciplinary action, yet it is an alarming signal for HR, and it will be a challenging task for HR to prevent the happening of such things anymore.

Dear Clarification-Seeker,

Information Given by You: "We received a complaint letter (Third-party complaint) stating that she noticed many times, some group of male employees giving sexually coated comments on female employees whoever go for lunch to the canteen."

At this juncture, I need clarifications on Your Queries:
1. Is it handled by ICC?
2. If Yes, According to POSH ACT what are the steps to be adapted for the Enquiry?

Clarifications:
1. Yes.
2. The Written Report received, inter alia, should immediately be forwarded to the Presiding Officer of the Internal Committee of the Establishment which employs the Persons against whom the Report has been raised so that the IC begins their Proceedings, including i) Conciliation Proceedings at the behest of the Aggrieved Women Complainants and or b) Full-Fledged Inquiry Proceedings in accordance with the Principles of Natural Justice and the Procedures prescribed for such Internal Inquiries.

In case, a Preliminary Inquiry has not yet been held to prima facie ascertain the Facts of the SH Complaint, so as to Draft Charge-Sheets or Explanation-Seeking Letters, it should be held either by a Member of the IC or a Supervisor/an Officer of the Establishment on submission of whose Report Charge-sheets or Explanation Letter be issued.

If the Internal Committee Members have attended/participated in the Mandatory a) Orientation Program and b) Capacity & Skills Building Program, as prescribed in the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act 2013, they should be by now fully familiar with the Inquiry Procedures to be Properly and Faithfully followed, Step-by-Step.

The Internal Committee must complete/conclude the Inquiry before 90 days and Submit their Inquiry Report with definite and conclusive Findings to the Employer within the next 10 Days for him/her to decide on further necessary Action.

Any further Clarification and/or request for Assistance is Welcome.

Harsh Sharan
Spl Educator, Transformatix
Bengaluru
19.3.2018

Yes, the term "third-party complaint" - I am sorry to say - shows that you have lost full control over the malpractices happening within the company premises repeatedly. Even waste material should not be allowed to go out by any company. Then how do you allow or bear eve-teasing within the protected area of the company? Eve-teasing, which is disrespect towards women workers, certainly falls under misbehavior and deserves disciplinary action. Confirm with CCTV camera reports.

Usually, third-party means might be servers, cooks, or cleaners of that canteen. Canteen and eating places are within the premises of the company. They have certain rules strictly followed by all do's and don'ts. So, appoint a cool, silent observer to report ongoing matters there. Put the contents on the open notice board immediately. Warn them even if any anonymous misbehavior with women will result in removal and being put behind bars.

For this, directly move ahead without any meeting with the ICC, etc. If you suspend anyone directly on a spot surprise visit, then conduct the ICC to decide the gravity of punishment. Be courageous in maintaining discipline. Your company premises are not a bus stand, public park, dhaba, or a college. Let all your employees know the sanctity of it.

I feel it is wrong on the part of the law that the woman has to prove that she was harassed. Which Indian woman will attract attention to herself by recording such an act? It doesn't have to be an innuendo; many times there is pushing and shoving.

Don't you think companies must set up their culture in such a way that a woman feels safe and secure? After all, if there is housekeeping staff to keep the place clean, why can't there be marshals, CCTV set up, and strict policies to deal with such miscreants? Corporate culture cannot do away with their accountability in providing a safe environment for women to work in. The law is not enough.

Geet Mala Jalota
Author of the book "Have The Women Left Venus? Decoding Gender at the Workplace"
Buy from: Amazon.in | Amazon.com | Flipkart | Shopclues | Amazon Kindle | Google Play

Please investigate the matter concerning the third party because no employees have made a complaint. This may be false or true. Register this complaint with your internal committee and promptly investigate the matter. Sometimes, employees may not directly report such incidents due to fear of job loss, so they confide in outsiders. Please visit their place, gain their trust, and approach the concerned employees to assure them that they need not fear job loss as it is beneficial for the company's future.

This is a critical case as sometimes third parties exploit situations for their gain. CCTV or other sources may assist in validating third-party comments.

Conduct a 5 W+1H analysis (why, what, who, when, whose, and how).

Our NGO conducts investigations in a similar manner through the [Globalized Campaign Welfare Society](http://www.gcws.in) and has achieved fruitful results.

Installing CCTV in all places will reduce incidents. However, 100% monitoring on a daily basis to ensure that all CCTV cameras are properly recording should be a top priority as a preventive measure.

R. Srinivasan

Third-Party Harassment - As per the Act, if third-party harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge have to take necessary and reasonable steps, as per the law, to assist the affected person in terms of support and preventive action, including assisting an employee/third party who wishes to file a complaint with the local police.

V. Sounder Rajan
HR & Employment Law Attorney

Dear Friends,

I am a late arrival in this discussion. Nevertheless, many members have contributed to this discussion, and I would like to add the following:

Complaint redressal under the POSH Act starts with a complaint by an AGGRIEVED WOMAN. Third-party complaints have no place under the POSH Act. Prabhat ji has described this subject of complaint under POSH well. The word "can" in the statement "any aggrieved woman can file a complaint..." is not appropriate.

The complaint by the AGGRIEVED WOMAN should be specific and not vague. According to the latest judgment of Delhi HC 472 reported in LLR May 2018, a vague complaint under the POSH Act is not tenable. It is the duty of the employer to provide a safe working environment.

The company must take cognizance of the complaint by a third party, as already stated by Nathrao ji. After the due investigation of the complaint by a third party, the IC members/Company should persuade the group of women to lodge a specific complaint to the IC against specific persons within 3 months and proceed accordingly.

I hope the queriest has received answers to both of his/her questions from the discussions so far on this subject.

The details that are given are incomplete.

After receiving numerous responses from various professionals, the individual asking the question may be feeling overwhelmed. I believe they would be the best person to provide a detailed explanation of the case. Only after that can we apply the relevant laws or regulations found in the IPC.

Thanks