INTERNAL COMPLAINTS COMMITEE – ITS POWERS AND FUNCTIONS
India has enacted Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, (POSH Act) to recognize sexual harassment as a violation of women’s fundamental right to equality and that all workplaces be made accountable and responsible to protect these rights of concerned women. Under this Act, there are provisions that require an internal complaints committee to be set up in every workplace so that there can be frequent reporting of the harassment cases.
The seed of formulation of this law and the committee was sowed by the Apex Court while dealing with a very special case. It was the case of Vishaka and Others v. State of Rajasthan and Others (1997 (7) SCC 323), the Apex Court laid down “Vishaka Guidelines” spelling out guidelines relating to sexual harassment of women till a historical piece of legislation was enacted by the government.
Thus, was born The Sexual Harassment of Women at Workplace Act (Prevention, Prohibition, and Redressal hereinafter referred to as “POSH Act”) 2013. This Act is binding on all Public and Private Sector Organisation within India. As per the law,
every organisation or company having 10 or more employees needs to establish their Internal Complaints Committee. ICC has powers of a Civil Court and it follows principles of natural justice. ICC is bound to conduct a thorough inquiry absolutely fairly, in a neutral manner and without any bias for or against anyone. But one must make sure that there is no misuse of the powers of the committee by the members or the parties in the case.
COMPOSITION OF ICC
The committee should comprise of female and male members and more than 50% of the strength of the ICC should be female. The chairperson has to be a female and one External member should be there from legal background.
The Presiding Officer, is usually a woman employed at a senior level at workplace from amongst the employees.
Internal Member–not less than two members from amongst employees who are committed to the cause of women. According to the POSH Act and Rules, it is the employer’s responsibility to schedule orientation programmes and training workshops on a regular basis to fill in the knowledge gaps of ICC members and to make sure they are better equipped to carry out their obligations.
External Member –one external member who is familiar with the legal issues relating to sexual harassment.
The phrase ‘person familiar with the issues relating to sexual harassment’ has been explained in the 2013 Rules with the following deeming provisions:
- a social worker with at least five years’ experience in the field of social work in the area of empowerment of women, and in particular sexual harassment at the workplace, or
- a person familiar to labour, service, civil or criminal law;
DISQUALIFICATION OF MEMBER OF ICC
The POSH Act prescribes the following grounds of disqualification of a person from membership of the ICC:
- Disclosure by the person of matters which are required to be kept confidential under the POSH Act, such as information regarding the complaint submitted to an ICC, identity of the complainant/aggrieved, the respondent or any witnesses, details of inquiry proceedings and recommendations of the ICC, or action taken by the employer.
- If the person has been convicted, or an inquiry is pending against such person, of any offence under any law.
- Similarly, if the person has been found guilty, or an inquiry is pending against such person, with regard to any disciplinary proceedings.
- Where the person has abused their position, rendering their continued membership in the ICC to be prejudicial to public interest.
On occurrence of any of the above grounds, the member would have to step down and be replaced with individuals possessing suitable qualifications relevant to the category of membership.
POWER OF ICC
As per Section 11(3) the Internal Complaints Committee enjoys the powers same as that of a Civil Court and therefore:
- It is empowered to initiate an inquiry into a complaint of sexual harassment at the workplace according to the Internal Complaints Committee Policy.
- ICC has the power to summon witnesses and parties to state the committee.
- It enjoys the discretion of summoning evidence to be examined if it may be deemed necessary to do so by the members of the Committee
Filing of Complaint-
- Any individual who feels they have been subjected to sexual harassment have to file a written complaint with the ICC within three months of the incident date, or, in the case of a series of incidents, within three months of the date of the latest incidence.
- The Presiding Officer or any member of the ICC must facilitate the aggrieved party in making a written complaint if the complainant cannot be made in writing.
- Only if the ICC is convinced that the circumstances precluded the aggrieved party from filing the complaint, can it extend the deadline by an additional three months.
- At the complainant’s written request, the Internal Complaints Committee may take action to conciliate the dispute between the complainant and the respondent before opening an investigation.
- Monetary settlement cannot under any circumstance be made the basis of such conciliation.
- In case a settlement has been arrived at, the ICC shall record it and forward it as part of their report. If there is no chance of conciliation, the ICC will proceed and conduct enquiry.
In case, conciliation is not possible or has failed, ICC shall investigate the complaint and provide its report, as promptly as possible, but not later than 90 working days from the date of the Complaint.
Action during pendency of Inquiry
- If required the aggrieved person or the respondents/accused are transferred to any other workplace;
- If required the aggrieved person is granted leave up to a period of three months;
- Grant relief to the aggrieved person
Manner of Inquiry
- A copy of the Complaint as recorded by ICC shall be given to the Respondent as well as the Complainant within 7 days,
- The Respondent shall submit his response to the Complaint as well as to indicate whether the Respondent wishes the ICC to examine any witnesses or furnish any evidence within 10 days.
- Committee may terminate the inquiry or give ex-parte decision, if complainant or respondent respectively is absent for 3 consecutive hearings, without sufficient reason. Fifteen days written notice is to be given to the party before termination of enquiry or ex-parte order.
- At any stage of the proceedings before the ICC, neither the complainant nor the respondent shall be allowed to bring any legal practitioner to represent them.
- From the date of completion of the inquiry, the ICC shall provide a report of its findings and recommendation within 10 days to the concerned authorities as well as complainant and respondent.
Action for Sexual Harassment:
If the ICC recommends that action be taken against the respondent, the employer may take action accordingly. If the ICC recommends that the complaint was false, the employer may initiate defamatory action against the complainant accordingly.
If the allegations are proved then the ICC shall recommend the Employer to take disciplinary action by one or more of the following:
- Written apology.
- Undergoing a Counselling Session.
- Carrying out community service.
- Change of work assignment for either the accused or the victim.
- Reprimand or censure.
- Written warning.
- Suspension or termination of services.
Internal Complaints Committee Policy mandates that the compensation by ICC shall be determined based on:
- Any mental trauma, pain, suffering, and emotional distress caused to the aggrieved employee
- The loss in career opportunity due to the incident of sexual harassment
- Any Medical expenses incurred by the victim for physical/ psychiatric treatment
- The income and status of the accused.
Within 90 days of receiving the recommendations, any party that is unsatisfied or further aggrieved by the implementation or omission thereof may file an appeal with the appropriate appellate authority in accordance with the Act.
ANNUAL REPORT BY ICC
- Section 21 of Sexual Harassment (Prevention, Prohibition and Redressal) Act, 2013 mandates submission of annual report in each calendar year to employer and the District Officer.
- Section 22 of the Act directs the employer to include information in the annual report which shall include number of cases filed, any disposal of the cases reported and inform such number of cases to the district officer.
- Rule 14 of the Law states that the following details need to be included in the Annual Report
- Number of complaints of sexual harassment received in the year
- Number of complaints disposed off during the year
- Number of cases pending for more than ninety days;
- Number of workshops or awareness programme against sexual harassment carried out
- Nature of action taken by the employer or District Office
Ministry of Women & Child Development launched an online complaint management system titled Sexual Harassment electronic -Box (She-Box) on 24th July, 2017 for registering complaints related to Sexual Harassment at workplace. The She-Box is an initiative to provide a platform to the women working or visiting any office of Central Government (Central Ministries, Departments, Public Sector Undertakings, Autonomous Bodies and Institutions etc.) to file complaints related to Sexual Harassment at workplace under the Sexual Harassment of Women at workplace (Prevention, Prohibition and Redressal) Act, 2013.
Once a complaint is submitted to She-Box, it will be directly sent to the Internal Complaint Committee (ICC) of the concerned Ministry/ Department/ PSU/ Autonomous Body etc. having jurisdiction to inquire into the complaint. The She-Box also provides an opportunity to both the complainant and nodal administrative authority to monitor the progress of inquiry conducted by the ICCs.
As per the Act, sexual harassment includes any Physical contact and advances, or a demand or request for sexual favours, or ,making sexually coloured remarks, or ,Showing pornography, or Any other unwelcome physical, verbal, non verbal conduct of sexual nature coupled with Implied or explicit promise of preferential treatment in her employment, or Implied or explicit threat of detrimental treatment in her employment, or Implied or explicit threat about her present or future employment status, or Interference with her work or creating an intimidating or offensive or hostile work environment for her, or Humiliating treatment likely to affect her health or safety. To combat and curb this menace, POSH Act has been enacted and the implementation of which requires collective support from all sections of society.
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