Dear CiteHR member Harsh Kumar Sharan,
C/o Kritarth Consulting Pvt Ltd TEAM of Special Educators PoSH Programs;
What I gather from your post is that you aim to determine the appropriate course of action in the given circumstances. An aggrieved woman, after the completion of the inquiry by the IC and upon finding that the allegations are proven, seeks a written apology from the respondent. You have also inquired about who holds the authority to decide on the quantum of punishment in such cases. As per your statement, the employer serves as the appointing authority/punishing authority and is entitled to delegate its authority in writing to decide on the quantum of punishment, proportionate to the serious nature of misconduct.
Firstly, I would like to mention that the opinion provided by CiteHR senior expert KK!HR is broad and acceptable. The opinion presented by Col. Suresh Rathi is also acceptable, with some modifications as per my considered opinion below. However, I must respectfully state that Shri Vibhakar Ramtirthkar's opinion lacks support from relevant provisions of the statute Sexual Harassment of Women at Workplace (PPR) Act 2013 {SHWW (PPR) Act 2013}.
In accordance with the provisions of the statute SHWW (PPR) Act 2013
1. An employer must have a POSH policy in compliance with the provisions of SHWW (PPR) Act 2013.
2. An employer is obligated to establish an Internal Committee to investigate complaints of sexual harassment at the workplace (Section 4(1)).
3. The IC must include an external member (Section 4(2)(c)).
4. An employer must include sexual harassment as misconduct in the conduct/service rules of the company {Section 19(i)}.
5. Before commencing an inquiry, the IC must inform the aggrieved woman about the provision for conciliation between her and the respondent. This conciliation can only take place at her request, and if she chooses to pursue it, she must submit a written application expressing her intention for the IC to proceed with conciliation. Money should not be a consideration for such conciliation (Section 10(1)).
6. No inquiry will be conducted if a conciliation is reached (Section 10(2)).
7. After the inquiry, the IC must forward its findings to the employer with recommendations to take action for misconduct in accordance with the conduct/service rules if the allegations are proven (Section 13(3)(i)).
It is evident from the statutory provisions that the option to request a written apology was available to the aggrieved woman before the start of the inquiry by the IC, not after its completion. If the IC did not inform the aggrieved woman of conciliation, it cannot do so after the inquiry. Therefore, no written apology can be demanded by the aggrieved party after the inquiry is completed.
Regarding your final query about whether the appointing authority (also the punishing authority) can delegate its power to another authority for imposing punishment, it is noted that in administrative law, disciplinary powers may only be delegated to other authorities by an entity in whom such power has been vested either by the statute or by a resolution of the Board of Directors. It should be emphasized that delegated powers cannot be further delegated.
The competent disciplinary authority must determine the quantum of punishment, considering the findings of the IC, the nature of guilt, and its severity. It is essential to avoid outrightly suggesting termination or dismissal when providing an opinion. It should be noted that the IC is not empowered under the statute to recommend or impose any punishment.
I hope this addresses your queries. I kindly request you to verify and consider the comments and opinions that you find valuable and beneficial for your adoption.
Regards,
Chandra Mani Lal Srivastava
Master Consultant
[Phone Number Removed For Privacy-Reasons]
Subject Expert on POSH/SHWW (PPR) Act 2013 & practices
Member IC
Email: [Email Removed For Privacy Reasons]
New Delhi/20.02.2022/5:59 pm
Harsh Kumar Sharan, XLRI Alumnus;