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They say nothing comes easy and there is a tag to everything. The same holds true for seeking the protection of the Sexual Harassment of Women at Workplace Act, 2013 (SHWA). There can be no two opinions that the legislations passed by the Parliament in December, 2013 are a landmark law in gender protection. Together with the Criminal Law Amendments to Sections 354A, 354B, 354C & 354D of the Indian Penal Code, (treating harassment as criminal offences) SHWA constitute a determined response to meet the challenge of Sexual Harassment of women at the workplace.
And yet the task of achieving the object of the law is a long and winding road on which the complainant must persevere through successive legal forums of the legal system with all its uncertainties and delays. The experience with this legislation is proving to be no different. The Internal Complaints Committees (ICC) of corporates must grapple with rival claims, and the dictates of legal processes, for relief the victims of sexual harassment must meet the formidable challenge of adducing evidence, for the accused the right to proclaim his innocence till proven otherwise, for the management the dilemma of compliance and the compulsions of containing the damage to the corporate brand. These are early days but the new legislation is already a battle ground rife with allegations of non-compliance, prejudice of ICC members, violations of procedure, evidence not considered, biased conduct of proceedings, and wrongful reprieve of the accused by the management.
Contrary to popular impression, the guidelines for conduct of inquires originated with the Supreme Court judgement in 1996 in the Vishaka Vs State of Rajasthan, and thereafter several decisions of the High Courts reinforced and clarified the jurisprudence on which the inquiries were to be conducted including principles of natural justice and fair play. By the time the Act was passed and notified for implementation, the legal world was acutely conscious of the pitfalls that would have to be navigated in inquiry proceedings to deal with complaints of sexual harassment. Unfortunately though understandably, the ICC’s constituted by employers comprise members who are not trained or qualified to grapple with legal requirements, which they find both cumbersome and time consuming. This makes ICC decisions easy for lawyers on both sides to pick holes in, leading to appeals in state-level industrial tribunals or through Writs in High Courts.
Among the most common and recurrent issues of challenge are the following though not the only:-
The last category in sub-clause (v) of S.3 has a much wider scope and includes any other unwelcome physical, verbal or non- verbal conduct of sexual nature. Quite often complainants do not think carefully or seek appropriate advice to bring out the exact nature of their experience as also of the conduct which they faced. It is extremely important to fit it into the language used in each category of prohibited conduct. Describing non-verbal conduct of sexual nature or even of verbal nature would need some memory of details so that the accusation does not sound vague under cross examination, and the complainant does not simply wilt under pressure. The best possible advice would be to keep some record of the incident and seek advice at the earliest. That is why delay in reporting such incidents in writing to HR can prove costly to the interest of the accused.
Dear Sir,I m working in a leading bank in india, a female collegue do a sexual harassment complain against me, where she praduce a audio of business related behave and most of verbal communication happen for her safty and options, the audio was of 15 nov 2016 and complain doing in 2 aug 2017, where as she given her resign after misconduct or mis behsve to my superior and submit her resign on july mid 2017. After she produce this for her personal interests or intention to remove.Icc of bank, accepet the case and first no offer to settle out before proceeding, they not listen and talk about whole conversation of audio and 2 hearing, also they not listen.No witnesses allow or asked for such matter, where i named to talk about her behave or allegation.They demand to give note for him defences where all situation i described but they say u not defence u doing allegation her.Then They finally without consider anything, give a order for dismissal of service.Kindly suggest me where i go or its such under unlawful decion or proceeding of low :-1. Audio almost 9 month old (time of incident as per law more then 6 month)2. No option given for setting out both parties3. No witnesses allow, as my nature or behavior to all collegues4. Not consider my any words, in audio as well as written defence.5. Not consider, where she complain after her resign process she do for blackmail purpose where all team member know its a false complain (where she almost trying to harres everyone, team knows, either in my under or before my joining)6. One side decision which was harsh where no physical contact or commutation only her safty where more things to have.Request you to guide me as i m mentalky harresed by this decision where i m not guilty and they declared.
We understand that you are aggrieved by the order of ICC. Any such complaint of sexual harassment has to be made to ICC in writing within 3 months from the date when incident occurred. However, such time period may be extended by ICC if the circumstances permit. Also, while conducting the proceedings ICC has to give an equal opportunity to both the parties to be heard, to examine the witnesses and also give a copy of the report to both the parties. In case one is aggrieved by the decision of ICC then an appeal can be preferred against the recommendations.In case you need our assistance to analyze your case, you may contact our Business development team and send email at email@example.com
What if ICC is delaying the case.To whom a complaint against ICC be made during proceedings.
Who is the appellant authority against ICC ? (Civil court / Session court / High court)
dear sir, one of my female friend filed a sexual harassment complaint against her principal to the higher authority, after that they constitute a IIC but the members of IIC is there own employees and known persons and she raised her voice that this is not a neutral committee and i dont think that this will give me justice but soon after this, she got mail that this is our committe that is already in presence and you have to be present in this committeenow you tell me what is your advise and how to handle this situation ….they are not listening and they already made 2 sitting of IICand i am sure they all are playing game with hercan you please suggest how to proceed…..FIRMahila AyogMAhila Help lineor any other methodyour quick reply will help me alotplease suggest
Sir ,My 2 seniors harassed me sexually and I made complaint to HR first with in time period of 1 month . They formed ICC and ICC also harassed me and did not follow the guidelines and natural justice and they declared both accused innocent without investigating the matter properly. I have logged FIR against both accused. Can I file saprate petition against the ICC ? Please suggest
Dear Dinesh,Filing of the FIR against both the accused is the correct move in light of the facts you have mentioned. As against the ICC, below are a few option that you can look into:1. Approach the officer designated by the State Government in your jurisdiction (generally the Assistant Labour Commissioner of your area) and file an appeal against the ICC’s recommendations/proceedings;2. Approach the Court against the ICC’s recommendations/ proceedings under section 27 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013;3. If you believe that the members of ICC also caused sexual harassment to you and you have sufficient evidence to substantiate it, then file a complaint against the ICC member also.Best regardsRavi Singhania
Sir,Can ICC members be called by the police to record their statement in case the complainant files an fir against the respondent. Pl clarify quoting relevant Court case or provisions of posh Act/IPC
Can we file FIR aginst respondents and appeal against ICC recommendations both same time in sexual harassment at workplace cases ?
Am an employee in a insurance company, here me and boss were friends before I joined here. But the thing is boss started misbehaving and mis using friendship.. While on the way to a customer meet he tried to attack me forcefully but I didn’t allow rejected forcefully using my strength.. Next day he came and apologize for misbehaving and continue as a frnd again he did wrong in the office, one day in his can I help called me to write an adress on an envelope while am writing he put his hand inside my churidhar neck.. I caught him… I complnt this to an senior employee…. But he told superiors and my collegues that am intentionally creating issues ,my complaint is fake… And everybody startd I’ll treating me and treat me like an the culprit.. The real culprit is safe….This is what is happening in our society those who respond will be the culprit.
Complaint on 29th May. On 6th July FIR filed, as there was no rwdressal mechanism within the orgn. 3rd Aug Complaint lodged with NCW. ICC constituted and enquiry conducted on 3rd to 6th Sep. ICC Report delivered to complainant on 30th November. Where to file appeal against ICC Recommendation? By which date it has to be filed ?
Complaint on 29th May. On 6th July FIR filed, as there was no rwdressal mechanism within the orgn. 3rd Aug Complaint lodged with NCW. ICC constituted and enquiry conducted on 3rd to 6th Sep. ICC Report delivered to complainant on 30th November. Appeal against ICC Recommendations is to be filed by which date and where it is to be filed?
Dear SirIf an employer has only one workplace and has no women employee in that organisation. Who shall be appointed as the Presiding Officer of the ICC.Kindly, advise on the matter.
We understand that the present situation is not dealt with by Sexual Harassment of Women at Workplace (Prevention, prohibition and Redressal) Act, 2013 and rules made thereunder (“POSH”). Therefore, we would recommend that in this case, an external women member (qualifying the criteria given under the POSH) may be appointed on the Internal Committee (formerly known as ICC).
Dear Sir..One of my lady colleague filed false sexual harassment case against me to the ICC committee. She stated in her complain that I harassed her on 5th June, but on that day after 20-30 minutes when we are returning home, she texted me via WhatsApp with very friendly way. Now this is my only proof but ICC not listening to me, they are saying that, this women has complained us so we have to take action against you.Now Sir..please suggest me what to do
Hi Somenath,This is to inform you that per the applicable law, if the complaint is received by the Internal Committee, the same has to be heard by following the procedure given thereunder. However, you will also be given an opportunity of being heard and to present your case with all the evidence in your possession. In case the Internal Committee’s decision is not in your favour, you may prefer an appeal before the competent authority.
Can ICC members be called by the police to record their statement in case the complainant has filed FIR against the respondent? Pl clarify quoting relevant Court case or provisions of POSH Act/IPC
What are the provisions of resignation of a committee member in the POSH Act?
I WANT NOTIFICATIONS ON NEW POSTS
What is the procedure for escalation if an ICC ruling is biased against the respondent?
sir, my query is that, ICC gave report that, complaint is baseless and recommended to warn the complainant. in pursuance of this, the disciplinary authority issued charge-sheet to the complainant under Service rules. after issuance of charge-sheet the disciplinary authority was transferred and in his place other person came with an additional charge and this person being disciplinary authority again inquired the matter and exonerated the complainant. the complainant then filed complaint case before the JMFC which is pending. after about 3 years from report of ICC, again on request of Complainant, new ICC was constituted dissolving the previous one without any reason and then this subsequent ICC gave report that, complaint of the complainant made before 3 years back is true. my query is that, whether without challenging the report of previous ICC, can the disciplinary authority can inquire the matter and that too holding the additional charge and whether the second ICC can give its report declaring guilty the accused/respondent. will Medha Kotwal Lele’ case and pradip mandal’ case would be applicable. court saying that, disciplinary proceeding must be followed.