"What can be done if the Aggrieved Woman-Complainant Seeks a Written Apology Letter from the Respondent after her Sexual Harassment Complaints filed against her Colleague are found true during the Inquiry by the Internal Committee?
The Employer is the Appointing Authority/Punishing Authority and is empowered to Delegate its Authority in Writing to Decide on the Quantum of Punishment, Proportionate to the Serious Nature of Misconduct, as it were.
Let's share your invaluable insight on who is the authority competent to decide on the Quantum of Punishment in such cases as quoted above.
Harsh Kumar Sharan, XLRI Alumnus;
C/o Kritarth Consulting Pvt Ltd TEAM of Special Educators PoSH Programs;
18th Feb 2022
#Kritarthika #holistichr #allaboutposh #PoshLessons #PoshMasters #PoshProtocol"
From India, Delhi
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214The Employer is the Appointing Authority/Punishing Authority and is empowered to Delegate its Authority in Writing to Decide on the Quantum of Punishment, Proportionate to the Serious Nature of Misconduct, as it were.
Let's share your invaluable insight on who is the authority competent to decide on the Quantum of Punishment in such cases as quoted above.
Harsh Kumar Sharan, XLRI Alumnus;
C/o Kritarth Consulting Pvt Ltd TEAM of Special Educators PoSH Programs;
18th Feb 2022
#Kritarthika #holistichr #allaboutposh #PoshLessons #PoshMasters #PoshProtocol"
From India, Delhi
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The delegation of power in disciplinary matters applies to POSH cases too. The appointing authority is competent to impose any punishment including dismissal even in POSH case
From India, Mumbai
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From India, Mumbai
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First of all, if the Aggrieved Woman-Complainant Seeks a Written Apology Letter from the Respondent, she is letting go of the matter very lightly. However, she has the right to her view.
It is up to the authority empowered to award punishment to make a decision based on the misconduct that has been proven and whether the punishment is sufficient and acceptable to both parties.
Col. Suresh Rathi
From India, Delhi
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It is up to the authority empowered to award punishment to make a decision based on the misconduct that has been proven and whether the punishment is sufficient and acceptable to both parties.
Col. Suresh Rathi
From India, Delhi
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Dear Harsh,
According to the POSH Act, there is no specific punishment for sexual harassment because it ranges from mere staring to rape and murder. The length of service and past record are to be considered when awarding punishment.
In your query, you have not mentioned the act of sexual harassment. Many times, when the complaint is proved, the complainant and management tend to award severe punishment to create an example for others, but this can lead to enmity. Outside the establishment, the employer has no authority, and the accused can harass the victim outside the establishment. To avoid such situations, it is better to settle the issue amicably.
In this case, the complainant appears wise as she has come forward to settle the case with a written apology, which is a welcome move.
Regarding any punishment, the POSH committee decides the punishment and recommends it to the employer. The committee takes into account all aspects and decides on a suitable punishment. The committee may also consider the suggestions made by the complainant.
In one case, a male, also a union representative, and recipient of a courier mail, misbehaved with the courier girl step by step. On the third day, the girl went home without informing anyone. After 2-3 days, the courier company inquired and discovered the situation. The principal company HR Manager spoke to the Union, which assured management that they would appropriately advise the courier receiver. This approach is incorrect as it should have been referred to the POSH committee. The appropriate punishment in this case should certainly be much more than mere advice.
Vibhakar Ramtirthkar, Pune.
From India, Pune
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According to the POSH Act, there is no specific punishment for sexual harassment because it ranges from mere staring to rape and murder. The length of service and past record are to be considered when awarding punishment.
In your query, you have not mentioned the act of sexual harassment. Many times, when the complaint is proved, the complainant and management tend to award severe punishment to create an example for others, but this can lead to enmity. Outside the establishment, the employer has no authority, and the accused can harass the victim outside the establishment. To avoid such situations, it is better to settle the issue amicably.
In this case, the complainant appears wise as she has come forward to settle the case with a written apology, which is a welcome move.
Regarding any punishment, the POSH committee decides the punishment and recommends it to the employer. The committee takes into account all aspects and decides on a suitable punishment. The committee may also consider the suggestions made by the complainant.
In one case, a male, also a union representative, and recipient of a courier mail, misbehaved with the courier girl step by step. On the third day, the girl went home without informing anyone. After 2-3 days, the courier company inquired and discovered the situation. The principal company HR Manager spoke to the Union, which assured management that they would appropriately advise the courier receiver. This approach is incorrect as it should have been referred to the POSH committee. The appropriate punishment in this case should certainly be much more than mere advice.
Vibhakar Ramtirthkar, Pune.
From India, Pune
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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, my considered opinion is as follows:
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 a 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
9315516083
Subject Expert on POSH/SHWW (PPR) Act 2013 & practices
Member IC
Email: srivastavacmlal@gmail.com
New Delhi/20.02.2022/5:59 pm
Harsh Kumar Sharan, XLRI Alumnus;
From India, New Delhi
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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, my considered opinion is as follows:
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 a 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
9315516083
Subject Expert on POSH/SHWW (PPR) Act 2013 & practices
Member IC
Email: srivastavacmlal@gmail.com
New Delhi/20.02.2022/5:59 pm
Harsh Kumar Sharan, XLRI Alumnus;
From India, New Delhi
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The complaint having been proven, the disciplinary authority is under a legal duty to impose punishment in accordance with the existing policy, taking into consideration the gravity of the misbehavior. The opinion of the complainant is not relevant at the present juncture.
From India, Kochi
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From India, Kochi
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In my opinion, the opinion of the complainant is very relevant as she is the one seeking justice and has a right to offer her views. It is for the competent authorities to accept or reject her opinion.
Col. Suresh Rathi
From India, Delhi
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Col. Suresh Rathi
From India, Delhi
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To CiteHR senior colleagues and Moderators,
And also, for the kind attention of Apurva Arora Rao - CiteHR Legal.
1. First of all, I would request CiteHR founder Shri Sidharth Rao, Sir, to make it a rule for the person/member who initiates a thread for discussion that it would be mandatory for him/her to validate or invalidate a reply if it is found correct according to applicable laws. It will motivate the Experts who devote their time to answering the query according to the professional expertise of the subject. It is generally seen that the thread-initiating member does not even express a word of thanks to the Experts who render the relevant and appropriate advice. In this case, Mr. Harsh Kumar Sharan is silent, though four Expert Members have given their opinion. Hence, it is felt that there should be a rule of validating the reply by the thread-initiating member.
2. A nominal fee of Rs.100/- should be charged from a thread-initiating member if he/she is asking any question in a personal capacity. For persons who seek advice for their company by virtue of their post, a fee of Rs.500/- should be charged by CiteHR. It will make the querist feel their responsibility for the Forum. This fee should be used towards the cost of maintaining the CiteHR Forum/website.
3. Now with due regards to Sri P. Venu, I may be permitted to state that in complaint cases under SHWW (PPR) Act 2013, it is not the policy but the provisions of "Act and Rules" that have to be followed with due process of law. Any punishment/penalty cannot be straight away inflicted upon the charged employee on the basis of a proven report. A charge sheet has to be issued in accordance with the service rules of the company, and further proceedings to be held accordingly to decide whether and what punishment/penalty will be suitable in wisdom of the Disciplinary Authority.
4. With due regards and respect to Col. Suresh Rathi, I may be permitted to mention that his opinion is not backed by the SHWW (PPR) Act 2013. It has been already illustrated with reference to Section 10 SHWW (PR) Act 2013 that a complaint could exercise her right of conciliation (asking for a written apology) before the commencement of the inquiry, not after the IC has proved the allegation. Therefore, it is not opinion, but the Act that matters. Accordingly, the complainant cannot insist on a written apology from the respondent at her own will in derogation of the law.
5. It may also be relevant to mention that the name of Harsh Kumar Sharan is appearing under my name, but this was not written by me. I am unable to edit that post today. I shall request CiteHR to please delete/remove this name from my comments.
Hope my submissions will be considered in the right spirit.
Regards, Chandra Man Lal Srivastava Master Consultant 9315516083 Subject Expert, Member IC
New Delhi/22.02.2022/11:18 pm
From India, New Delhi
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And also, for the kind attention of Apurva Arora Rao - CiteHR Legal.
1. First of all, I would request CiteHR founder Shri Sidharth Rao, Sir, to make it a rule for the person/member who initiates a thread for discussion that it would be mandatory for him/her to validate or invalidate a reply if it is found correct according to applicable laws. It will motivate the Experts who devote their time to answering the query according to the professional expertise of the subject. It is generally seen that the thread-initiating member does not even express a word of thanks to the Experts who render the relevant and appropriate advice. In this case, Mr. Harsh Kumar Sharan is silent, though four Expert Members have given their opinion. Hence, it is felt that there should be a rule of validating the reply by the thread-initiating member.
2. A nominal fee of Rs.100/- should be charged from a thread-initiating member if he/she is asking any question in a personal capacity. For persons who seek advice for their company by virtue of their post, a fee of Rs.500/- should be charged by CiteHR. It will make the querist feel their responsibility for the Forum. This fee should be used towards the cost of maintaining the CiteHR Forum/website.
3. Now with due regards to Sri P. Venu, I may be permitted to state that in complaint cases under SHWW (PPR) Act 2013, it is not the policy but the provisions of "Act and Rules" that have to be followed with due process of law. Any punishment/penalty cannot be straight away inflicted upon the charged employee on the basis of a proven report. A charge sheet has to be issued in accordance with the service rules of the company, and further proceedings to be held accordingly to decide whether and what punishment/penalty will be suitable in wisdom of the Disciplinary Authority.
4. With due regards and respect to Col. Suresh Rathi, I may be permitted to mention that his opinion is not backed by the SHWW (PPR) Act 2013. It has been already illustrated with reference to Section 10 SHWW (PR) Act 2013 that a complaint could exercise her right of conciliation (asking for a written apology) before the commencement of the inquiry, not after the IC has proved the allegation. Therefore, it is not opinion, but the Act that matters. Accordingly, the complainant cannot insist on a written apology from the respondent at her own will in derogation of the law.
5. It may also be relevant to mention that the name of Harsh Kumar Sharan is appearing under my name, but this was not written by me. I am unable to edit that post today. I shall request CiteHR to please delete/remove this name from my comments.
Hope my submissions will be considered in the right spirit.
Regards, Chandra Man Lal Srivastava Master Consultant 9315516083 Subject Expert, Member IC
From India, New Delhi
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Dear Mr Srivastava, Thanks for educating me Col.Suresh Rathi
From India, Delhi
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From India, Delhi
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