Please share your views for the following;
1. Can the HR department or the Head of the Management give directions or interfere in IC enquiry proceedings on SH cases? (In some situations it is happening in some organisations. In this situation, what will be the role of External Member of IC?)
2. Can IC have powers to summon anyone who is needed for the particular SH case independently without the consent of the Organisation? (Note; PO and other members of IC are the employees of the Organisation)
3. Who has authority to give findings of the SH cases?
From India, Villupuram
21. Can the HR department or the Head of the Management give directions or interfere in IC enquiry proceedings on SH cases? (In some situations it is happening in some organisations. In this situation, what will be the role of External Member of IC?)
2. Can IC have powers to summon anyone who is needed for the particular SH case independently without the consent of the Organisation? (Note; PO and other members of IC are the employees of the Organisation)
3. Who has authority to give findings of the SH cases?
From India, Villupuram
Dear Information-Seekers & Others concerned,
"Point-wise Lawful Position", are as below:
Point-1:--- " Can the HR department or the Head of the Management give "Directions" or "Interfere" in IC Inquiry Proceedings into SH Complaints? (In some situations it is happening in some organisations. In this situation, what will be the role of External Member of IC?"
Clarification Offered: " No Person or Entity, whatsoever, Can or Should give "Directions" to IC Members or "Interfere" with the ongoing Inquiry Proceedings Conducted by the IC into any SH Complaint. Such an Act is Unlawful, Unauthorized and Punishable.
"Internal Committees", once Constituted by the Employer or the Head of Institution, under Section-4 of Sexual Harassment of Women at Workplace(Prevention, Prohibition & Redressal) Act 2013 (gazetted on 9.12.2013) "
"Shall Function as an Independent Legal Entity/Body/Mechanism/Forum without any External OR Outside of the IC, Influence, Interruption, Interference, Inroads, Clout, Affirmation, Advise or Words put in in any manner whatsoever; and
Only the Internal Committee Members, Shall have the Same Powers as are Vested in a Civil Courts (Section-11) for the Purpose of making an Inquiry into SH Complaint NOT anyone else in the Establishment in any Capacity OR by Virtue of Aiding and Advising the IC irrespective of Position/Hierarchy,
Moreover, the IC Presiding Officer and or any IC Member under Section-4, Sub-Section (5) shall be liable and accountable before the Laws of the Land For Dereliction of Duty as IC Member or PO. Is or Will the HR Dept Personnel of the Management Superior or Any Person involving in IC Inquiry, Come Forward to Face the Legal Penalties for and on behalf of that Outsider, as it were? In fact, the right-thinking IC Presiding Officer and the Employee-Members Must Object to such Interference as reported, Verbally and in writing.
There lurks a Great Risk for such Persons interfering as aforesaid For SHe Box -an Online Portal- has since been Launched by Ministry of Women & Child Development in No 2017 and any Person Disgruntled with such interference may Register Her/His Protest on SHe Portal inviting Not Only be an Embarrassment but is inviting Legal Penalties. So Employers Beware and Effectively Stop External Pressure and the Like.
Point-2. ..."Can IC have powers to summon anyone who is needed for the particular SH case independently without the consent of the Organisation? (Note; PO and other members of IC are the employees of the Organisation)..."
Clarification Offered by Kritarth Team: " Yes, most Certainly as very categorically stipulated in Section-11 of SHWW Act 2013 for the Object of Any Such Internal Inquiry is to ASCERTAIN the Facts of the Complaint.
Point-3. ...."Who has authority to give Findings of the SH Complaints/ Cases?..."
Clarification Offered: " Only the Internal Committee Members who were present and participated in the Inquiry Proceedings shall Sign/Attest the Inquiry Report with Findings on each of the Pages of the Report.
The Findings must be issued to the Complainant and the Respondent to enable them to make Representation if any against the said Findings and must Review the Representation if any submitted.
The IC Presiding Officer must forward the Inquiry Report with Findings to the Employer/Punishing Authority for information and further necessary action.
The IC ought to remember that their Inquiry Findings are Definite and Conclusive (Refer to Delhi HC relevant Verdict) as the Inquiry Findings are Final and Binding(Ref to Kolkata HC relevant Verdict).
Every Employer and Every IC and others who are deemed to be at par with the Employer in the Establishments Must refer to, Understand and act accordingly with the Provisions under Section-16 of SHWW Act 2013.
Aforesaid Clarifications Offered by Kritarth Team of Spl Educators.
Kritarth Team,
26 June 2018
From India, Delhi
"Point-wise Lawful Position", are as below:
Point-1:--- " Can the HR department or the Head of the Management give "Directions" or "Interfere" in IC Inquiry Proceedings into SH Complaints? (In some situations it is happening in some organisations. In this situation, what will be the role of External Member of IC?"
Clarification Offered: " No Person or Entity, whatsoever, Can or Should give "Directions" to IC Members or "Interfere" with the ongoing Inquiry Proceedings Conducted by the IC into any SH Complaint. Such an Act is Unlawful, Unauthorized and Punishable.
"Internal Committees", once Constituted by the Employer or the Head of Institution, under Section-4 of Sexual Harassment of Women at Workplace(Prevention, Prohibition & Redressal) Act 2013 (gazetted on 9.12.2013) "
"Shall Function as an Independent Legal Entity/Body/Mechanism/Forum without any External OR Outside of the IC, Influence, Interruption, Interference, Inroads, Clout, Affirmation, Advise or Words put in in any manner whatsoever; and
Only the Internal Committee Members, Shall have the Same Powers as are Vested in a Civil Courts (Section-11) for the Purpose of making an Inquiry into SH Complaint NOT anyone else in the Establishment in any Capacity OR by Virtue of Aiding and Advising the IC irrespective of Position/Hierarchy,
Moreover, the IC Presiding Officer and or any IC Member under Section-4, Sub-Section (5) shall be liable and accountable before the Laws of the Land For Dereliction of Duty as IC Member or PO. Is or Will the HR Dept Personnel of the Management Superior or Any Person involving in IC Inquiry, Come Forward to Face the Legal Penalties for and on behalf of that Outsider, as it were? In fact, the right-thinking IC Presiding Officer and the Employee-Members Must Object to such Interference as reported, Verbally and in writing.
There lurks a Great Risk for such Persons interfering as aforesaid For SHe Box -an Online Portal- has since been Launched by Ministry of Women & Child Development in No 2017 and any Person Disgruntled with such interference may Register Her/His Protest on SHe Portal inviting Not Only be an Embarrassment but is inviting Legal Penalties. So Employers Beware and Effectively Stop External Pressure and the Like.
Point-2. ..."Can IC have powers to summon anyone who is needed for the particular SH case independently without the consent of the Organisation? (Note; PO and other members of IC are the employees of the Organisation)..."
Clarification Offered by Kritarth Team: " Yes, most Certainly as very categorically stipulated in Section-11 of SHWW Act 2013 for the Object of Any Such Internal Inquiry is to ASCERTAIN the Facts of the Complaint.
Point-3. ...."Who has authority to give Findings of the SH Complaints/ Cases?..."
Clarification Offered: " Only the Internal Committee Members who were present and participated in the Inquiry Proceedings shall Sign/Attest the Inquiry Report with Findings on each of the Pages of the Report.
The Findings must be issued to the Complainant and the Respondent to enable them to make Representation if any against the said Findings and must Review the Representation if any submitted.
The IC Presiding Officer must forward the Inquiry Report with Findings to the Employer/Punishing Authority for information and further necessary action.
The IC ought to remember that their Inquiry Findings are Definite and Conclusive (Refer to Delhi HC relevant Verdict) as the Inquiry Findings are Final and Binding(Ref to Kolkata HC relevant Verdict).
Every Employer and Every IC and others who are deemed to be at par with the Employer in the Establishments Must refer to, Understand and act accordingly with the Provisions under Section-16 of SHWW Act 2013.
Aforesaid Clarifications Offered by Kritarth Team of Spl Educators.
Kritarth Team,
26 June 2018
From India, Delhi
----Addendum Offered by Kritarth Team of Spl Educators to Previous Post, Today---
"Duties of Employers" are enunciated/Listed in Section-19 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act 2013 and include:
Every Employer shall
(a) Provide a safe working environment at the workplace with shall include safety from the persons coming into
contact at the workplace;
(b) Display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order
Constituting, the Internal Committee under sub-section (1) of section 4;
(c) Organise workshops and awareness programmes at regular intervals for sensitising the employees with the
provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as
may be prescribed;
(d) Provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing
with the complaint and conducting an inquiry;
(e) Assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local
Committee, as the case may be;
(f) Make available such information to the Internal Committee or the Local Committee, as the case be, as it may
require having regard to the complaint made under sub-section (1) of section 9;
(g) Provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian
Penal Code (45 of 1860) or any other law for the time being in force;
(h) Cause to initiate action, under the Indian Penal Code (45 of 1860) or any other law for the time being in force,
against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the
workplace at which the incident of sexual harassment took place;
i) Treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
(j) Monitor the timely submission of Reports by the Internal Committee
In the circumstances, as and when the Internal Committee for the purpose of ascertaining the Facts of the Complaints, needs to examine Witnesses- internal and or External) -it becomes the Bounden-Duty of the Employers and the Head of Institutions to render all reasonable assistance to the IC in enforcing/getting the attention of the Witnesses so summoned by the IC.
Requests for any Clarification and or Assistance Welcome
Kritarth Team,
26.6.2018
From India, Delhi
"Duties of Employers" are enunciated/Listed in Section-19 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act 2013 and include:
Every Employer shall
(a) Provide a safe working environment at the workplace with shall include safety from the persons coming into
contact at the workplace;
(b) Display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order
Constituting, the Internal Committee under sub-section (1) of section 4;
(c) Organise workshops and awareness programmes at regular intervals for sensitising the employees with the
provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as
may be prescribed;
(d) Provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing
with the complaint and conducting an inquiry;
(e) Assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local
Committee, as the case may be;
(f) Make available such information to the Internal Committee or the Local Committee, as the case be, as it may
require having regard to the complaint made under sub-section (1) of section 9;
(g) Provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian
Penal Code (45 of 1860) or any other law for the time being in force;
(h) Cause to initiate action, under the Indian Penal Code (45 of 1860) or any other law for the time being in force,
against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the
workplace at which the incident of sexual harassment took place;
i) Treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
(j) Monitor the timely submission of Reports by the Internal Committee
In the circumstances, as and when the Internal Committee for the purpose of ascertaining the Facts of the Complaints, needs to examine Witnesses- internal and or External) -it becomes the Bounden-Duty of the Employers and the Head of Institutions to render all reasonable assistance to the IC in enforcing/getting the attention of the Witnesses so summoned by the IC.
Requests for any Clarification and or Assistance Welcome
Kritarth Team,
26.6.2018
From India, Delhi
No person can interfere in the proceedings of the IC or give directions to it. IC has the powers of the Court so you can not interfere or give directions as you can not do so with a Court.
The IC has the powers to some any person / document / information etc as it may deem fit during the course of the inquiry.
The findings of the inquiry shall be presented by the IC.
If you need any professional help in the POSH related matters, please feel free to connect with me. I have experience of being an external member on various ICs and handling such inquiries as well as providing trainings on POSH and related matters.
Thanks & Regards,
Avika Kapoor
From India, New Delhi
The IC has the powers to some any person / document / information etc as it may deem fit during the course of the inquiry.
The findings of the inquiry shall be presented by the IC.
If you need any professional help in the POSH related matters, please feel free to connect with me. I have experience of being an external member on various ICs and handling such inquiries as well as providing trainings on POSH and related matters.
Thanks & Regards,
Avika Kapoor
From India, New Delhi
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