Time Tested Guide to Inquiry Proceedings for New Members of Internal Committee-

In deference to the Wishes of my Well-Wisher Paritosh Sharan and Our LinkedIn Readers & in all propriety, I, for & on behalf of Kritarth Consulting Team, herewith do combine & consolidate Two Posts already posted & forthcoming Posts on Time Tested Internal Inquiry Procedures, as below:-

Internal Committees are law-bound to commence, conduct and complete Inquiries into Sexual Harassment Complaints in accordance with Twin Principles of Natural Justice as well as the Procedures prescribed for such Internal Inquiries. Standard of Proof of Truthfulness or Fallacy or Falsity of any SH Complaint before IC is governed by Preponderance of Probabilities rather than prescribed Provisions of Evidence Act as applicable to Courts/Judiciary.

Internal Committees, for the purposes of completing Inquiry, are empowered with Powers &Authority of Civil Courts in India. It is incumbent, therefore on ICs to exercise this Authority & Power with due discretion not callously, carelessly, arrogantly or arbitrarily.

Internal Committees Proceedings are Quasi-Judicial and the Records created by them are Legal Documents to be kept Confidential in custody of ICs and need not be shared with anyone excepting the Courts as & when summoned.

IC Inquiry Reports with conclusive & definite Findings with the Recommendations, if any have to be issued, at the end of Inquiry, to the Woman-Complainant and the Employee-Respondent to enable them to submit their Written Representations, if any, against IC Findings for purpose of Review by IC and Final & Binding Findings. 

Internal Committee’s Inquiry conducted in absence of and without involving the External Member shall be invalid as rightly upheld by Bombay High Court. (Bombay High Court 2014 SCC OnLine Bom 814).

The rationale behind compulsorily having an External Member on each IC is to prevent the possibility of any undue pressure or influence from Senior Levels in Organization/Workplace and ensuring a safe environment for Aggrieved Woman-Complainant and her Witnesses, since the Inquiry into Sexual Harassment Complaint is conducted within the Organisation itself and 3 out of 4 IC Members Functionaries are Nominated from amongst Employees of the Workplace.  Strict adherence to this requirement has been upheld by various other High Courts.

IC Members should be free from any ambiguity, arbitrariness, bias, prejudice or extraneous influence of either the Complainant or the Respondent or Employer.

Any retaliatory action or act of victimization of the Aggrieved Woman Complainant particularly Aggrieved Employee-Complainant subsequent to Sexual Harassment shall form part of her Sexual Harassment allegations. (Delhi High Court 2010 172 DLT 409).

Last but not the least, Internal Committees, constituted under Section-4 of SHWW (P, P & R) Act 213, are Independent Legal Body/Entity, with 4 Members including External Member duly Nominated by Employers of each Workplace with Ten & more Employed irrespective of whether or not a Woman is employed.

ICs have jurisdiction over all Employees at the Workplace for which constituted excepting the Person designated/named as Employer/Head of Establishment /Workplace who has ultimate control over the affairs of the Workplace/Esta.

Now, let’s turn to Inquiry Procedures to be followed by Internal Committees, in right earnest.

For Beginners clarity, IC Inquiry Proceedings are described in 3 Stages namely

Stage-1 Pre-Inquiry Proceedings; Stage-2 Inquiry Proceedings: Stage-3. Post-Inquiry Proceedings:

Stage-1 Pre-Inquiry Proceedings involve Employer /Mgt. /Disciplining Authority’s Duties & Responsibility to take Series of Action-Steps including:

i) Issue Explanation-Seeking Letter to Employee-Respondent as per Provisions of Certified Standing Orders or Codified Services Rules, applicable to her/him once the Written Sexual Harassment Complaint is filed either to the Superiors or the IC or HR Dept or routed thru She Box by Ministry of Women & Child Development & received by Disciplinary Authority;

ii) Organize Preliminary Investigation, prima facie, to ascertain if the SH Written Complaints or Verbal Complaints reported by Aggrieved Woman- Complainant require further Full-Fledged Inquiry by Internal Committee. SH Written Complaints must have 4 Essential Elements like Date, Time, and Place of alleged Incident and some Details of the Incident per se;

iii) I C Members are Duty-Bound to volunteer to render all reasonable assistance to Aggrieved Woman Employee or Non-Employed in “Writing” her Complaint. This help can be rendered by Persons authorized under Provisions;

iv) Once a Written Complaint is ‘Filed” & received by Disciplinary Authority, an Explanation Letter or Charge-Sheet must be served on Respondent informing that the allegations leveled against her/him constitute Misconduct for which s/he is liable to Disciplinary Action as per CSO or CSR applicable & s/he be advised to submit Written Explanation in her/his “Defense”. Complaint Copy need to be given to Respondent to enable her/him to know the “Allegations” and submit Written Reply in her/his defense within specified Time;

v) The Explanation-Seeking Letter must also mention that the Written Reply in Defence shall be forwarded to IC to ascertain the Facts/Truth of the Allegations during IC Proceedings in the presence of the Complainant; that Respondent shall avail all reasonable opportunity to disprove the allegations leveled in the Letter by examining her/his Witnesses and or Evidence and to cross-examine the Witnesses & Evidence examined /produced by the Complainant; that Respondent must not make known to anyone about the Identity of Complainant, Contents of Complaint, the IC Proceedings etc;

vi) On receipt of Written Reply-in-defense, Disciplining Authority must forward it with Copy of Explanation Letter or Charge-sheet asking IC to begin IC Proceedings & submit conclusive & definite Report with Findings & Recommendation.

At this juncture, Stage-1 ends & Stage-2 begins.

Stage-2: Commencement of Inquiry Proceedings by Internal Committees:

i) The Presiding Officer shall preside over IC Proceedings including Inquiry Proceedings with Two other Employee-Members + External Member present and participating at all times, throughout;

ii) IC must create & maintain 2 Documents i) Order-Sheets to record sequence of Steps taken during Proceedings &ii) Record of Testimonies with Signatures/LTI of all Participants on all Pages which also serves as Proof that IC Proceedings were Fair, Just & Proper and impartial;

iii) On receipt of said Documents & Office -Order, the IC commences Proceedings by issuing Notices to Woman-Complainant & Employee-Respondent with copies to IC Members informing & advising them to participate in scheduled IC Proceedings on the Date, Time & Venue stated in the Notice;

iv) IC in its said Notice, must inform the Complainant & the Respondent that during IC Proceedings they, both shall be given all reasonable opportunity to produce their Witnesses & Evidence, documentary or Digital, to substantiate their Case/Stand and Cross-examine each other, their Witnesses & substantive Evidences etc; that IC shall obey the Twin Principles of Natural Justice;

v) Internal Committee, at the outset of Proceedings must inform Complainant and the Respondent with sufficient precision that a) Internal Committee is legally constituted Independent Legal Entity; b) they and their Witnesses were bound by law to speak under Oath, the truth and nothing but the Truth; c) it is essential that their Testimony before I C is fact not fiction, to the point not vague, is proper not fallacy or fake, is trustworthy not fanciful or fabricated else the absence of truth and presence of a lie would constitute wilful attempt to mislead the I C which attracts Disciplinary Action, Prosecution and Penalties; d) Internal Committee is vested with Powers of Civil Courts for purpose of making Inquiry namely i) Summoning and enforcing the attendance of any person and examining on oath and ii) Requiring the discovery and production of documents etc. e) that I C shall record their Statements, Testimonies & admit Evidence produced before them, as Exhibits and no Copies of the Records shall be supplied to them & they are allowed to jot down notes for reference. In all the Sequence/Series of Events to be followed by C must be explained along with Purpose & Procedures of IC Proceedings;

vi)The relevant Standing Orders and Provisions of SHWW (P,P &R) Act 2013 must be explained with sufficient precision to Complainant & Respondent & to Witnesses and affirmations recorded that they understood their Legal Liability & Accountability for their Sworn Testimonies;

vii) After both affirm they understood all that were explained to them, the IC should inform Aggrieved Woman-Complainant about Option of Conciliation available to her only and admissible at her behest with consequences of agreeing or disagreeing to Conciliation.

--------------------To be continued

For Kritarth Consulting Pvt Ltd

Harsh Kumar Sharan, 7 Oct 2020

#holistichr #poshforever