Are Companies Ignoring Laws by Excluding External Members from Internal Committees?

Is it Fair, Just, or Proper to Exclude External Members from Internal Committee Proceedings?

“Necessity is the Mother of Invention”

Instances are many and increasing where external members of internal committees, for all practical purposes, are being excluded from IC free functioning by not allowing them to be associated with or involved in scheduled proceedings of internal committees on some pretext or other, often flimsy. This deft dispensation defeats the purpose of the compulsory nomination of external members on internal committees as mandated by Section-4 of the SHWW (P, P & R) Act 2013, despite a) a legal requirement where companies (Accounts) Amended Rules require the Board of Directors to file a declaration that internal committees at their workplace have been constituted and b) internal committees must file an annual report for each calendar year (Section-21) before the District Officer, a copy of which is incorporated in the company’s annual report filed before ROCs. Many ICs are thus on paper only, a paper tiger virtually.

The office of the external member, internal committees is and remains an indispensable invention of the Hon’ble Supreme Court of India. Alas, many have not yet embraced this unique invention, resulting in the recurrence of the painful phenomenon of sexual harassment, an organizational problem of considerable magnitude and an unsolved social problem hurting families and parents.

The necessity and need for “a third party” was to prevent the possibility of any undue pressure or influence from senior levels (of the concerned establishment). The Hon’ble Supreme Court in 1997 ordered all employers to involve “a third party” and constitute a committee to deal with SH. But the past record is bleak in 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 well-being for all stakeholders at the hands of their own management group.

The office of the external member, internal committees was conceived and erected by the architects of the landmark Vishakha Judgment 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 the SHWW (P, P & R) Act 2013. Exclusion of external member internal committee thus violates the laws and tarnishes 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 and full functioning of the ICs.

Regards, Harsh Kumar Sharan

Spl Educator PoSH Programs, Kritarth Consulting Team

2.7.2020

Hi Harsh, it is correct that an external member of the ICC cannot be excluded. This defeats the whole purpose of the act. The 'external member' was kept to ensure that victims of sexual harassment in the workplace get a fair hearing. Moreover, the requirement that such an external member shall either be a social worker or a person conversant with 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 recourse available under the Indian Penal Code, 1860, for sexual harassment or 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 as well.

Regards, Meera Kaura Patel

Partner, LawCircle

Email: [Email Removed For Privacy Reasons]

Thank you for your valuable and very relevant comments on the alarming trend of some internal committees willfully not associating the IC member external. This act or initiative is a blatant breach of the SHWW (P, P & R) Act 2013. For this, the presiding officer and the other two employee members are liable to punishment under Section 4 of the Act of 2013, including their instant removal from the office of their respective ICs. They are also liable under the laws of our land for the offense of obstructing due process of law and delivery of justice, rather for patent miscarriage of justice.

Moreover, employers of such workplaces/establishments where the aforesaid defaulting ICs are illegitimately malfunctioning are also concurrently liable to penal actions listed under Section 26 of the said Act of 2013 for their gross failure to discharge their duties as listed in Section 19. This includes the employer's duty to monitor the submission of reports, including IC inquiry reports with findings and recommendations.

In this connection, I, on behalf of the Kritarth Team of Special Educators (as defined in SHWW (P, P & R) Rules 2013, gazetted on 9.12.2013), draw your attention to the Honorable Bombay High Court's ruling/judgment/verdict/guideline in 2018 (if I recall) where it was clarified that all members of an/the IC must attend, be present, and fully participate in internal committee proceedings throughout.

In another judgment/ruling/verdict, the Honorable Madras High Court declared the inquiry report of only two members IC in a SH complaint as null and void and hence ordered full IC 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.

Regards, Harsh Kumar Sharan, Kritarth Consulting Pvt. Ltd, Bengaluru Office. 8th Sept 2020.

#holistichr #allaboutposh #poshmaster

Dear All, I had the opportunity to read the above discussion in detail. While I agree with some of you that the intention of lawmakers was possibly to include the External Member ("EM") in each and every investigation, the way this law is drafted (at present) does provide a loophole (a legal lacuna, if you may!) for organizations 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.

Current Quorum Requirements

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 COMPULSORY. If this was actually the intention of the lawmakers, 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 with. I would be happy to learn if there is even a SINGLE judgment which mentions that all the IC members—and specifically the EXTERNAL MEMBER—have to be part of every investigation, else the investigation report shall be vitiated. The judgments quoted above, respectfully, are not directly on this point—they only mention the lack of 'quorum,' i.e., not having 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.

Qualifications of an External Member

Further, let's also clear the air around the qualifications of an EXTERNAL MEMBER. Again, people tend to confuse the specific qualifications required in the 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 the qualification of an EXTERNAL MEMBER while constituting the INTERNAL COMMITTEE (note this important here—we are discussing the 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 the case of the INTERNAL COMMITTEE.

Also, then look at Chapter III, Section 7, which deals with the 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 the creation of societal conditions favorable towards the empowerment of women and in particular in addressing workplace sexual harassment; b. a person who is familiar with labor, 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 to 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.