"What can be done if the Aggrieved Woman-Complainant Seeks Written Apology Letter from Respondent after her Sexual Harassment Complaints Filed against her Colleague, are Found True during the Inquiry by 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 Quantum of Punishment in such cases as Quoted above
Harsh Kumar Sharan, XLRI Alumnus;
C/o Kritarth Consulting Pvt Ltd TEAM of Spl Educators PoSH Programs;
18th Feb 2022
#Kritarthika #holistichr #allaboutposh #PoshLessons #PoshMasters #PoshProtocol
From India, Delhi
200The 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 Quantum of Punishment in such cases as Quoted above
Harsh Kumar Sharan, XLRI Alumnus;
C/o Kritarth Consulting Pvt Ltd TEAM of Spl Educators PoSH Programs;
18th Feb 2022
#Kritarthika #holistichr #allaboutposh #PoshLessons #PoshMasters #PoshProtocol
From India, Delhi
First of all, if Aggrieved Woman-Complainant Seeks Written Apology Letter from Respondent , she is letting go the matter very lightly, but then she has right to her view.
It is up to the auth empowered to award punishment , to take a call based on as to what misconduct has been proved and is this punishment sufficient as well acceptable to the two parties
Col.Suresh Rathi
From India, Delhi
It is up to the auth empowered to award punishment , to take a call based on as to what misconduct has been proved and is this punishment sufficient as well acceptable to the two parties
Col.Suresh Rathi
From India, Delhi
Dear Harsh;
According to POSH Act, there is no specific punishment for sexual harassment. Because it ranges from a mere staring to rape and murder. Again the length of service, past record are to be considered while awarding punishment.
In your query you have not mentioned the act of sexual harassment. Many times, when the complaint is proved, complainant and management tends to award severe punishment, so as to create an example to others. But this raises enmity. Outside the establishment, employer has no authority. The accused can harass her outside the establishment. To avoid such an untoward situation, it is always better to settle the issue amicably.
In this case the Complainant appears to be wise. She herself has come forward to settle the case with a written apology. That is a welcome move.
As for any punishment, the POSH committee decides the punishment and recomends it to employer. POSH committee will take into account all other aspects and decide upon a suitable punishment. POSH committee may also accept the suggestion by Complainant.
In one case the male, also a union representative, recepient of courier mail misbehaved with the courier girl step by step. On the third day the girl went home without telling anyone. After 2-3 days the courier compnay enquired and found out this. The principal company HR Manager talked to the Union who assured management that they will suitably advise the courier receiver. This is utterly wrong. Firstly it should have been referred to POSH committee. Appropriate punishment in this case ought to be certainly mushn more than the advise.
Vibhakar Ramtirthkar, Pune.
From India, Pune
According to POSH Act, there is no specific punishment for sexual harassment. Because it ranges from a mere staring to rape and murder. Again the length of service, past record are to be considered while awarding punishment.
In your query you have not mentioned the act of sexual harassment. Many times, when the complaint is proved, complainant and management tends to award severe punishment, so as to create an example to others. But this raises enmity. Outside the establishment, employer has no authority. The accused can harass her outside the establishment. To avoid such an untoward situation, it is always better to settle the issue amicably.
In this case the Complainant appears to be wise. She herself has come forward to settle the case with a written apology. That is a welcome move.
As for any punishment, the POSH committee decides the punishment and recomends it to employer. POSH committee will take into account all other aspects and decide upon a suitable punishment. POSH committee may also accept the suggestion by Complainant.
In one case the male, also a union representative, recepient of courier mail misbehaved with the courier girl step by step. On the third day the girl went home without telling anyone. After 2-3 days the courier compnay enquired and found out this. The principal company HR Manager talked to the Union who assured management that they will suitably advise the courier receiver. This is utterly wrong. Firstly it should have been referred to POSH committee. Appropriate punishment in this case ought to be certainly mushn more than the advise.
Vibhakar Ramtirthkar, Pune.
From India, Pune
Dear CiteHR member Harsh Kumar Sharan
C/o Kritarth Consulting Pvt Ltd TEAM of Spl Educators PoSH Programs;
What I gather from your post that you aim to collect what would be right course of action in the given circumstances when an aggrieved woman after completion of inquiry by IC and finding that allegations are proved, wants a written apology from the respondent. You have further inquired as to who is the authority competent to decide on Quantum of Punishment in such cases. It is stated by you that 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.
First of all I may like to state that CiteHR senior expert KK!HR has given a broad opinion that is acceptable. The opinion given by Col. Suresh Rathi, with due respect, is acceptable but with modification as per my considered opinion given below. However, I would like to be excused in stating with due honour to Shri Vibhakar Ramtirthkar that his opinion in not backed by relevant provisions of the statute Sexual Harassment of Women at Workplace (PPR) Act 2013 {SHWW (PPR) Act 2013}.
My considered opinion in accordance with the provisions of the statute SHWW (PPR) Act 2013 is given hereunder:
1. An employer has to have a POSH Policy in accordance with the provisions of SHWW (PPR) Act 2013;
2. An employer has to notify an Internal Committee to inquire into the complaints of sexual harassment at workplace (Section 4(1));
3. The IC must have an external member (Section 4(2)(c));
4. An employer has to incorporate sexual harassment as a misconduct in the Conduct/Service rules of the company {Section 19(i)}
5. IC before commencing inquiry into the complaint has to inform the aggrieved woman that there is provision for conciliation between the aggrieved woman and the respondent but that would be taken up only at her request, and if she decides for it, she has to give an application in writing of her intention that IC may take up the matter for conciliation. Money will not be a consideration for such conciliation (Section 10 (1);
6. No inquiry will be conducted where a conciliation is arrived (Section 10(2);
7. IC after inquiry has to send its findings to the Employer with recommedation to take action for misconduct as per Conduct/Service Rules if the allegations are found proved (Section 13 (3)(i);
It is clear from the above provision of the Statute that option for asking a written apology was available to the aggrieved woman before start of inquiry by IC, not after completion inquiry. However if the IC did not inform the aggrieved woman of conciliation then it can not do so after the inquiry. No written apology can be demanded by the aggrieved after completion of inquiry.
Your last query is whether the appointing authority (also the punishing authority) can delegate its power to some other authority for imposing punishment, the position is that in administrative law the disciplinary powers may be delegated to other authorities only by an authority in whom such power has been vested either by the statute or by a resolution of the Board of Directors. It may be noted that powers once delegated cannot be delegated further.
The quantum of punishment will have to be decided by the competent Disciplinary Authority keeping in view the findings of the IC, nature of guilt and its gravity. Termination or dismissal cannot be outrightly suggested by anyoe while giving an opinion. It may be noted that IC has not been empowered under the Statute to either to recommend or to award any punishment.
Hope this answers your query. I would request you to validate such comments and opinion which 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
New Delhi/20.02.2022/5:59 pm
Harsh Kumar Sharan, XLRI Alumnus;
From India, New Delhi
C/o Kritarth Consulting Pvt Ltd TEAM of Spl Educators PoSH Programs;
What I gather from your post that you aim to collect what would be right course of action in the given circumstances when an aggrieved woman after completion of inquiry by IC and finding that allegations are proved, wants a written apology from the respondent. You have further inquired as to who is the authority competent to decide on Quantum of Punishment in such cases. It is stated by you that 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.
First of all I may like to state that CiteHR senior expert KK!HR has given a broad opinion that is acceptable. The opinion given by Col. Suresh Rathi, with due respect, is acceptable but with modification as per my considered opinion given below. However, I would like to be excused in stating with due honour to Shri Vibhakar Ramtirthkar that his opinion in not backed by relevant provisions of the statute Sexual Harassment of Women at Workplace (PPR) Act 2013 {SHWW (PPR) Act 2013}.
My considered opinion in accordance with the provisions of the statute SHWW (PPR) Act 2013 is given hereunder:
1. An employer has to have a POSH Policy in accordance with the provisions of SHWW (PPR) Act 2013;
2. An employer has to notify an Internal Committee to inquire into the complaints of sexual harassment at workplace (Section 4(1));
3. The IC must have an external member (Section 4(2)(c));
4. An employer has to incorporate sexual harassment as a misconduct in the Conduct/Service rules of the company {Section 19(i)}
5. IC before commencing inquiry into the complaint has to inform the aggrieved woman that there is provision for conciliation between the aggrieved woman and the respondent but that would be taken up only at her request, and if she decides for it, she has to give an application in writing of her intention that IC may take up the matter for conciliation. Money will not be a consideration for such conciliation (Section 10 (1);
6. No inquiry will be conducted where a conciliation is arrived (Section 10(2);
7. IC after inquiry has to send its findings to the Employer with recommedation to take action for misconduct as per Conduct/Service Rules if the allegations are found proved (Section 13 (3)(i);
It is clear from the above provision of the Statute that option for asking a written apology was available to the aggrieved woman before start of inquiry by IC, not after completion inquiry. However if the IC did not inform the aggrieved woman of conciliation then it can not do so after the inquiry. No written apology can be demanded by the aggrieved after completion of inquiry.
Your last query is whether the appointing authority (also the punishing authority) can delegate its power to some other authority for imposing punishment, the position is that in administrative law the disciplinary powers may be delegated to other authorities only by an authority in whom such power has been vested either by the statute or by a resolution of the Board of Directors. It may be noted that powers once delegated cannot be delegated further.
The quantum of punishment will have to be decided by the competent Disciplinary Authority keeping in view the findings of the IC, nature of guilt and its gravity. Termination or dismissal cannot be outrightly suggested by anyoe while giving an opinion. It may be noted that IC has not been empowered under the Statute to either to recommend or to award any punishment.
Hope this answers your query. I would request you to validate such comments and opinion which 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
New Delhi/20.02.2022/5:59 pm
Harsh Kumar Sharan, XLRI Alumnus;
From India, New Delhi
The complaint having been proved, the disciplinary is under the legal duty to impose punishment in accordance with the extant policy taking into consideration the gravity of the misbehavior. The opinion of the complainant is not at all relevant at the present juncture.
From India, Kochi
From India, Kochi
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 auth to accept or reject her opinion.
Col.Suresh Rathi
From India, Delhi
It is for the competent auth to accept or reject her opinion.
Col.Suresh Rathi
From India, Delhi
To CiteHR senior colleagues and Moderators,
and also for 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 in answering the query according to the professional expertise of the subject. It is generally seen that thread initiating member does not even express a word of thanks to the Experts who render the relevant and appropriate advice. In this case also 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 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 cost of maintaining the CiteHR Forum/website.
3. Now with due regards to Sri P. Venu, I may be permitted to state that in a complaint cases under SHWW (PPR) Act 2013, it is not the policy but the provisions of "Act and Rules" that have to 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 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 complaint could exercise her right of conciliation (asking for a written aplology) before the commencement of 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 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 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
and also for 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 in answering the query according to the professional expertise of the subject. It is generally seen that thread initiating member does not even express a word of thanks to the Experts who render the relevant and appropriate advice. In this case also 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 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 cost of maintaining the CiteHR Forum/website.
3. Now with due regards to Sri P. Venu, I may be permitted to state that in a complaint cases under SHWW (PPR) Act 2013, it is not the policy but the provisions of "Act and Rules" that have to 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 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 complaint could exercise her right of conciliation (asking for a written aplology) before the commencement of 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 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 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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