Can Internal Committees Legally Use Non-Employees as Witnesses in Harassment Inquiries?

Can Internal Committees Examine Non-Employee Outsider as "Independent Witness" in Ongoing IC Inquiry Proceedings?

During the ongoing inquiry into her sexual harassment complaints, the aggrieved woman-employee complainant applied to her internal committee to arrange for the examination of three non-employee outsiders to testify as her witnesses to substantiate her allegations. She informed the internal committee that when she sought management permission to allow them, her witnesses, entry to testify during the inquiry before the employee-respondent, she was advised to apply to the IC. She was despondent at not getting reasonable support from management.

The moot point is, "Suo moto / sua sponte," can the internal committees examine a non-employee outsider as an "independent witness" and record their testimonies under oath in ongoing IC inquiry proceedings?

I earnestly seek expert opinions in this or similar situations so that all present and future internal committee members are benefited in discharging their duties faithfully, properly, and lawfully.

Harsh Kumar Sharan,
Serving IC Member (External) & Spl Educator PoSH Programs
Kritarth Consulting Team
our blog: https://holistichr.blogspot.com/
29.6.2020

External witnesses can be examined by the Committee. The role and testimony and relevance of an external witness will have to be assessed. It is quite possible the external witness was present in the office during the time harassment has occurred. Whether the witness will serve the "interests of justice" is the only factor to be considered.

In my view, the internal committee can allow the aggrieved woman employee to bring an external witness and adduce appropriate evidence as she may feel it would strengthen her case. Please see if your internal policy, rules, or standing orders provide for such permission regarding sexual harassment. In the absence of such a provision, you can permit her to bring an external witness, and the merits of the case can be assessed by the internal committee.

P. Senthilkumar

Good question. The answer, as the previous comments have suggested, is yes.

Section 11(1) of the Act

Section 11(1) of the Act states that when the respondent is an employee, the inquiry should be conducted as per the service rules.

Section 11(3) of the Act

Section 11(3) of the Act mentions that the Internal Committee shall have the same powers as are vested in a civil court in the Code of Civil Procedure, 1908, specifically in (a) summoning and enforcing the attendance of any person and examining him on oath.

Rule 7(4)

Rule 7(4), to be read along with the Act, clearly states that the principles of natural justice should be followed.

Considering that the term 'witness' is not included in the key definitions of the Act (unlike 'aggrieved woman' in 2(a) and 'respondent' in 2(m) provided in section 2 of the Act), we can safely infer that a witness could be anyone who witnessed Sexual Harassment or any part of it.

Reference

POSH Act, rules, and other documents can be accessed here: https://wcd.nic.in/act/2314

Best wishes,

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