Procedures and Timelines

under POSH

-By CS Divija Dave

Founder, POSHSHALA
 Agenda
• Constitution, Powers and Roles of IC
• Responsibilities of Employer
• Redressal Mechanisms - Timelines
• Who can file a complaint?
• What should a complaint contain?
• How to manage complaints effectively
• Importance of documentation
• List of documents to be maintained
• Best practices for IC
• Samples
Constitution of Internal
Committee, its roles and
powers
 Amendment in POSH Act, 2013 – May 9, 2016

Word ‘Complaint’ from the Internal Complaints Committee and Local

Complaints Committee was deleted.

The intention of the amendment is to indicate that the role of committees is

no longer limited to only dealing with complaints of aggrieved women. Rather
the role has now expanded to take proactive measures to create a safe and
enabling workplace environment for workers and strengthen awareness
mechanisms.
 Requirement of Constitution Internal Committee

Every organization having 10 or more employees, irrespective of the gender

must mandatorily constitute an Internal Committee.

Where the office or administrative units of a workplace are located in different

places, division or sub-division, a separate IC has to be set up at every
administrative unit and office.
 Presiding
Woman employee
Officer /
Chairperso employed at senior A minimum of
n level 4 members to
be nominated
by the
Employees (male or employer
female) preferably
Members having a legal bent Note: Atleast
of mind and 50% of the
sensitivity of the
total
subject
members of
Shall be from NGOs the IC shall be
External or associations or WOMEN
Member persons committed
towards and
familiar the cause
 Remember!

The presiding officer shall be a senior woman employed at the workplace.

However, if such senior woman is not available in a particular office or
administrative unit, employer shall nominate the presiding officer from his
other offices or units.

In case if such senior woman employee is still unavailable, the employer shall
nominate the presiding officer from his any other workplace or department or
organization.

In case of all men company – the employer shall take the help of local
committee of the jurisdiction
 Office of Internal Committee Members and Grounds of Removal

The IC members shall hold office for thr period of maximum 3 years from the
date of nomination. Post that the new team or the same team as per the
consent and convenience of the employer can be constituted for next period
of 3 years.

Must be noted that IC member shall be removed from the committee with an
immediate effect if:
• The member contravenes the provisions of the Act;
• Has been convicted of any offence or any enquiry is pending against such
member
• Has been found guilty of disciplinary proceedings
• Has abused its position
Powers of the Internal Committee

The Internal Committee has been vested with the powers of the Civil Court
under the Code of Civil Procedure, 1908. Such powers are:

• Summoning and enquiring the attendance of any person and examining

him on oath;

• Requiring the discovery and production of documents and;

• Any other matter which may be prescribed

Role of Internal
Committee
Take proactive measures in creation of safe, secure and preventive
workplace environment

Formulate and disseminate POSH policy

Organize regular workshops

Meet at regular intervals

Submit timely reports and manage compliances

 Responsibilities of
Internal Committee
• Receive complaints of sexual harassment at the workplace

• Initiate and conduct an inquiry as per the procedure

• Submit findings and recommendations of all the inquiries conducted

• Co-ordinate with the Employer for implementation of appropriate action

• Maintain strict confidentiality throughout the process as per established

guidelines

• Submit annual reports in the prescribed format as prescribed

The Internal Complaints Committee is required to be vigilant to redress the

sexual harassment complaints and resolve the same as soon as possible.
Dos and Don’ts for IC
Redressal Mechanism
Types of Redressal Mechanisms

Formal Inquiry Mechanism Conciliation Method

Conciliation Method

• The IC may before initiating an inquiry and at the request of the

aggrieved woman, take steps to settle the matter through conciliation

• No monetary settlement shall be made as a basis of conciliation

• Post settlement, the IC shall record the settlement forward the same to
the employer to initiate actions of the recommendations provided

• IC shall provide the copies of the settlement to both the parties

• No further formal investigation shall be made once the settlement is

arrived
Formal Inquiry Timelines

• Complaint filing in writing – Within 3 months from the date of the last
incident / in case of series of incidences, within 3 months from the date of
last incident

• Considering the severity of the matter, mental and physical impact –

further extension of 3 months to file the complaint

• Internal Committee to conduct inquiry

• Completion of Inquiry – Within 90 days from the receipt of the compliant

• Report of Inquiry to be submitted to Employer / District Officer – Within 10

days

• In case if the IC concludes that the allegations are not proved, it shall
recommend to initiate no actions

• Employer / District Officer to act upon recommendations – Within 60 days

• Appeal to Court / Tribunal – Within 90 days of receiving recommendations

Recommendations and Actions – Inquiry and
False Malicious Complaints

Verbal /
Written
Written Suspension Termination
Apology
Warning

Withholding
Demotion Fine / Penalty Transfer
Increments

Any other
Recommend action as
Dismissal a counselling deemed fit
session

© POSHSHALA 2021
Technicalities of conducting an inquiry
• At the time of filing the complaint, complainant shall submit 6 copies of
the complaint along with supporting documents, names and addresses of
witness to the IC

• Upon receipt of the complaint, IC shall send one copy to the accused
within 7 working days

• Upon receipt of the documents from IC, the accused shall file his reply the
complaint along with supporting documents, names and addresses of
witnesses within 10 working days of the receipt

• IC can terminate the inquiry, if the complainant or the accused fail to

present in 3 consecutive hearings, without giving any sufficient cause.
However, IC shall give a prior notice of 15 days to both the parties before
initiating termination

• Parties shall not be allowed to bring legal practitioners to represent them

at any stage during the inquiry procedure

• To conduct an inquiry, minimum 3 members of the IC, including the

Things to Remember!

IC to follow principle of
natural justice – to give an
IC – Powers of Civil Court
opportunity of being heard to
both the parties

Action during pendency of

Determination of
the inquiry – Transfer, grant
Compensation
leave, restrain
Actions during the pendency of Inquiry

Written By aggrieved IC may recommend to the

Request woman employer:
• Transfer of either parties
to any other workplace or
• Grant leave to aggrieved
woman upto 3 months or
• Change the reporting line
of the aggrieved woman

Clarification:
• Change of reporting line – restriction on accused can be put by the employer
from reporting on the work performance of the aggrieved woman or write
her confidential report. In case of an educational institution, the accused
can be restrained from supervising any academic activity of aggrieved
woman
• Leaves granted to aggrieved woman shall be in addition to the leave she
would otherwise be entitled
Determination of Compensation

Section 13(3) Considering the IC may recommend to the

(ii) severity of the employer:
case To deduct, from the salary or
wages of the accused, the
sum that it may find
appropriate to be paid to the
aggrieved woman or the
legal heirs.
Clarification: For the purpose of determining such sum, IC shall consider the
following:
• Mental trauma, pain, suffering, emotional distress caused to the aggrieved
woman;
• Loss of career opportunity due to the act of sexual harassment;
• Medical expenses incurred by the victim for physical and psychiatric
treatment;
• The income and financial status of the respondent;
• Feasibility of payment of such sums in lumpsum or installment
Importance of Confidentiality

IC by all means shall prohibit itself from publishing any content of the inquiry
or conciliation to the public, press or media in any form

Penalty – INR 5,000/- shall be recovered by the employer in such cases

Who Can File A Complaint?

Note:
Aggrieved Woman / Person Co-Worker
Written Permission /
Consent of the
Aggrieved Woman /
Person is mandatory

Complaint to be made
Any person to the Employer / IC
who has
Complainan
Complainan Complainan the
t’s Legal
t’s Relative t’s Friend knowledge
Heir
of the
incident

© POSHSHALA 2021
What Should the Complaint Contain?

Witnesses
Descriptio Time &
Date of Name of Relations /
n of Place of
Incident Accused hip Evidences
Incident Incident
, if any

© POSHSHALA 2021
Tips for IC - How to Manage Complaints
Effectively?
Confident Approach – Accuser must
have faith in you

Maintain Confidentiality – Word

Travels

Keep your workplace stable –Avoid

creating chaos at the workplace

Proper Documentation & Complete

Paperwork

Take an Unbiased Decision – Principle

of Natural Justice

Tackle False and Malicious Complaint

confidently

© POSHSHALA 2021
Importance of Paper Work

Inquiry by Internal Committee is subject to challenge before the courts,

wherein all documents may be examined for a judicial review

Section 25(1)(b) - states that the government can authorize any officer to make
an inspection of the records and workplace in relation to sexual harassment
and submit a report of such inspection

Keeping track Demonstration Avoids

of incidences of seriousness troubles in
occurred of the matter courts

© POSHSHALA 2021
Case Study and Takeaway

Case Reference - Arti Devi v. Jawaharlal University (W.P.(C)–9407/2019)

The Delhi High Court asked the Registrar of JNU to submit files relating to the
complaint of the petitioner, the recommendations of IC and the evidence on the
processing of said recommendations.

Takeaway

The reprimand of JNU Registrar by the Delhi High Court on non-production of

relevant documents and files relating to a complaint of sexual harassment filed
by a PhD student not only emphasizes the need to maintain proper
documentation but also the need to store them in an area where they are easily
accessible. In today’s time where both complainant and respondent are not
afraid to appeal against the decision, maintenance of proper documentation
not only helps substantiate the actions of IC but also avoids falling foul of the
court.
© POSHSHALA 2021
Documentation Compliance by IC

Pre - inquiry During the inquiry

Post inquiry

© POSHSHALA 2021
Pre – Inquiry List of Documents

Copy of compliant received

Proofs attached with the compliant, if any

List of witnesses provided with the complaint

Copy of acknowledgement of receipt of complaint

Notice issued by the IC to the respondent upon

receipt of the complaint

Copy of reply filed by the respondent

Proofs attached by the respondent

List of witnesses provided by the respondent

© POSHSHALA 2021
During Inquiry List of Documents
Copy of statements of complainant and
respondent

Copy of statements of cross examination of

witnesses

Copy of statements of other people whom IC

may have called at its discretion

Video recordings of inquiry meetings

Minutes of all inquiry and other meetings

held

Confidentiality agreement or pledge signed

by all IC members and parties

© POSHSHALA 2021
Post- Inquiry List of Documents
A reasoned Inquiry Report duly signed by all
members of IC

Representations submitted by parties upon

receipt of report

Copy of document based on implementation

of recommendations by IC

Minutes of all meetings of IC

Any directive or order given to employer in

chronological order

© POSHSHALA 2021
Additional List of Documents

Minutes of all meetings conducted by IC

Notice of all meetings

Registered / speed post receipts

Copy of any additional email

communications

© POSHSHALA 2021
Best Practices for IC

• Every organization must have a comprehensive policy in place that clearly

indicates the roles and responsibilities of IC along with the redressal
mechanisms and timelines to be followed

• Every organization must ensure that they have a competent external member
on board

• If any IC members including the presiding officer has any personal interest in
the case, they should opt out of the proceedings

• Organizations must ensure that their IC is fully equipped with the knowledge
and competencies to deal inquiries in an efficient manner

• Every member of IC must develop a quality of proper listening and unbiases

• Every member of IC must follow the principle of natural justice

• Every member of IC must adhere to confidentiality

Sample Notice by IC for Complainant

To,
(Name & address of the Complainant)

Subject: Notice to appear before the Internal committee

Your complaint has been received by the Internal Committee on dd/mm/yy. You
are requested to appear before the committee for a meeting on __________(date)
at __________ (time) at __________ (place).

Please attend the meeting with all relevant documents, names of the witnesses
if any, or any other evidence pertaining to the alleged incident/incidents.

Note: You should attend the meeting personally. No third party (including a
legal practitioner) can represent the complainant.

(Signed by Presiding Officer of IC)

(Name & designation)
Sample Notice by IC for Respondent
To,
(Name & address of the Respondent)

Subject: Notice to appear before the Internal committee

Please refer to the attached copy of the sexual harassment complaint received
by the committee on (dd/mm/yy).

Kindly acknowledge receipt of the notice and you are required to appear before
the committee on ________(date) at _________ (time) at ________ (address of the
place of meeting) along with relevant documents, evidence and the list of
witnesses, if any.

Note: You should attend the meeting personally. No third party (including a
legal practitioner) can represent the respondent.

(Signed by Presiding Officer of IC)

(Name & designation)

Attach – Copy of complaint received

Ingredients of Inquiry Report

• Details of parties to the case – Name, designation, Date of joining and

relationship between the two

• Date, Time and Place of the incident

• Date of filing the compliant

• Mode of receipt of the compliant

• Method of redressal adopted by the complainant

• Details of people examined during the process of investigation – Name,

Designation, Date of Meeting and their relationship with the parties involved

• Details of the complaint – mention AS-IS and attach a copy of the actual
complaint

• Details of documents submitted by the complainant along with the

complaint like proofs, list of witnesses, copy of police complaint filed
Ingredients of Inquiry Report

• How did IC respond to the compliant and what measures did IC take on
immediate basis considering the severity of the case

• Details of reply filed by the respondent

• Details of date wise inquiry meetings conducted by IC

• Findings of IC

• Recommendations by IC to the employer

• Rehabilitation for the complainant or respondent

• Penalties for the complainant or respondent

• Declaration by IC, if any

• Signature of all IC members

We are there for
you!

© POSHSHALA 2021
Thanks!
Any questions ?
You can find me at
◉ www.poshshala.com
◉ [email protected]