India: Constitution Of ICC Under The POSH Act

Last Updated: 28 January 2019
Article by Ashni Roy and Davis Kanjamala

Introduction

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("POSH Act") was enacted as a comprehensive legislation to provide a safe, secure and enabling environment, free from sexual harassment to every woman. This statute was enacted to fill the legislative void which had been partially addressed by the judiciary in Vishaka and Others v. State of Rajasthan and Others (1997 (7) SCC 323). In this seminal public interest litigation verdict, the Supreme Court of India had framed a set of guidelines ("Vishaka Guidelines") for dealing with instances of sexual harassment at the workplace, which has now been codified in the POSH Act.

Under the POSH Act, an employer is legally required to comply with certain statutory requirements. One of these is the constitution of an Internal Complaints Committee ("ICC"), a body envisaged to receive complaints on sexual harassment at the workplace from an aggrieved woman, as well as to inquire into and make recommendations to the employer on the action required pursuant to its inquiry of such complaint made.

The following discussion highlights key aspects that must be borne in mind by an employer seeking to constitute an ICC in compliance with the POSH Act.

Requirement to Constitute ICC

Any establishment employing ten or more employees is required to constitute an ICC by an order in writing by the employer. However, this numerical threshold has not been explicitly stated amongst clauses of the POSH Act pertaining to the formation and working of the ICC. Rather, this has to be inferred from a harmonious reading of the statute, namely provisions directing the government to form a Local Complaints Committee at each district, which committee is tasked with discharging functions similar to an ICC in relation to organizations with less than ten employees, or otherwise where a complaint has been filed against an employer. This interpretation is further supported by official press releases and reading material issued by the Ministry of Women and Child Development, Government of India.

In this regard, it must be noted that the definition of employee under the POSH Act is broad, and encompasses persons employed on a temporary, ad hoc or daily wage basis, and includes apprentices, trainees, volunteers and persons employed at a workplace through an agent or contractor. The term employer has also been defined in the context of governmental organizations, private sector organizations and households. With regard to the private sector, an employer is understood to mean any person responsible for the management, supervision and control of the workplace, with a further clarification that the person, board or committee responsible for formulation and administration of the policies of an organization would be included under the ambit of 'management'.

Employers should also note that the POSH Act does not specifically provide any timeframe for compliance upon its applicability being attracted - for instance, a period of thirty days upon the threshold of ten employees being reached. Accordingly, an employer should take care to constitute an ICC simultaneously with such employee headcount being achieved.

With a view to track the implementation of such statutory requirement and to ensure that the issue is brought to the attention of the board of directors of companies, the Ministry of Women and Child Development made certain recommendations to the Ministry of Corporate Affairs with regard to corporate reporting requirements. Pursuant to such recommendations, the Ministry of Corporate Affairs notified the Companies (Accounts) Amendment Rules, 2018 ("Companies Rules"), issued under Section 134 of the Companies Act, 2013 in order to ensure safe workplaces for women in the private sector. With effect from July 31, 2018, the Companies Rules were amended to include the following mandatory disclosure in the board's report of every company:

"A statement that the Company has complied with provisions relating to the constitution of Internal Complaints Committee under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013".

Accordingly, as per the amended Companies Rules, the above statement (on the status of the company's compliance with the requirement to constitute an ICC under the POSH Act) is required to be included in the directors' responsibility statement, which forms a part of the company's annual report.

Constitution of ICC

The Department-related Parliamentary Standing Committee on Human Resources Development ("Parliamentary Committee") had analyzed the proposed anti-sexual harassment legislation at a bill stage and made several recommendations on the law after taking into consideration inputs from various stakeholders and the Ministry of Women and Child Development. An issue which was debated upon extensively by the Parliamentary Committee was whether the ICC should be in the nature of a permanent body, with some stakeholders being in favour of the flexibility offered by an ad hoc body, to be constituted on any inquiry being required to be conducted, and dissolved upon the completion of such inquiry process.

However, the Parliamentary Committee eventually concluded that by virtue of having a pre-existing panel in place, victims would find it easier to file a complaint and seek redressal of their grievances without having to wait for attendant procedural formalities involved in constituting a committee. Accordingly, the POSH Act requires an employer to mandatorily constitute an ICC upon meeting the threshold of employee headcount, and not await any instance of a complaint being received from any aggrieved party.

Another issue on which there was considerable deliberation was with regard to organizations situated in more than one location. As per the POSH Act, an employer having multiple offices or administrative units in various locations is required to constitute an ICC at all such offices or units. This requirement could be arduous to organizations with several branches, such as restaurants. Further, organizations would also grapple with increased administrative costs and various challenges attributable to multiple committees being mandated, such as inconsistency in practices and outcomes.

The Ministry of Human Resources Department was sympathetic to such concerns and amenable to allowing relaxations, such as having a centralized committee with local members being co-opted when holding an inquiry. Unfortunately, currently no exemption or relaxation in this regard has been specifically provided for in the POSH Act or the rules framed pursuant to such legislation, namely the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 ("POSH Rules"). Accordingly, while an employer should constitute separate committees for each of its offices or units in order to strictly comply with the letter of the law, in no event should any office or unit lack recourse to a designated ICC.

The POSH Act requires the employer to specify the term of office of the members of the ICC, which period should not be more than three years from the date of their nomination. However, the POSH Act and the POSH Rules do not provide any clarity on the manner of disposal of an ongoing inquiry in the event of prior retirement, resignation or replacement of a member or members of the ICC. Given the overall emphasis of the statute on disposal of matters by the ICC within prescribed timelines (for instance completion of an inquiry within ninety days and providing the report of its findings to the employer within ten days from the completion of its inquiry), in our view the outgoing member(s) should be expeditiously replaced by the employer and the inquiry proceedings resumed. Legislative directions and/ or judicial precedents on this issue in the near future may provide suitable guidance to employers on the appropriate approach which ought to be adopted by them.

Criteria for Membership of ICC

The POSH Act envisages that an ICC constituted by an employer should comprise three categories of members, with certain eligibility criteria as follows:

(a) Presiding Officer

The chairperson of an ICC, referred to by the nomenclature Presiding Officer, shall be a senior level female employee. The legislative intent behind requiring that the ICC be chaired by a woman employed at a senior level was to make the ICC more approachable to women contemplating filing a complaint of sexual harassment, on the premise that women would feel more comfortable with a reporting and redressal mechanism headed by a woman.

The High Court of Allahabad had discussed the nature of seniority with regard to a Presiding Officer in Shobha Goswami v. State of Uttar Pradesh and Others (2015 LLR 1038). In this matter, the respondent had sought reconstitution of the ICC which was conducting an inquiry into a complaint filed against him by the petitioner. As per the respondent, the employee serving as the Presiding Officer of the ICC was his subordinate, and accordingly did not satisfy the criteria of being a senior level female employee. However, the High Court rejected such an interpretation that the female employee appointed to serve as the Presiding Officer on the ICC should be senior to the officer against whom the complaint of sexual harassment had been filed, and held that the POSH Act only requires that such lady member should be of a senior level.

In a similar factual scenario in Shital Prasad Sharma v. The State of Rajasthan and Others (2018 Lab IC 1859), the Rajasthan High Court observed that the POSH Act contemplates that a Presiding Officer is appointed to chair an ICC for a term of three years, and should not be removed in the interim (except on grounds of statutorily prescribed disqualifications, discussed in greater detail below). It therefore inferred that the Parliament could not have contemplated a scenario where the Presiding Officer would have to be chopped and changed on a case to case basis, depending on the seniority of the respondent in any given complaint. Accordingly, while appointing the Presiding Officer of the ICC, the employer should heed the requirement of seniority, which has been interpreted by courts to not be relative to the designation of the employee in respect of whom the inquiry was being conducted.

The POSH Act also provides that where a female employee fulfilling such criteria is not available, the employer may nominate a senior level female employee from another of its offices or administrative units, or failing that, from any other workplace of the same employer, or other department or organization. This enabling provision seeks to address concerns of relatively smaller enterprises or organizations with few or no female employees, by providing them the flexibility to nominate a Presiding Officer outside the immediate office or unit for which the ICC has been constituted.

(b) External Member

The ICC should include an external member being a person familiar with issues relating to sexual harassment, or from a non-governmental organization or association committed to the cause of women. Inclusion of such a third party member, which incidentally was also mandated by the Supreme Court in the Vishaka Guidelines, has been provided for with a view to inject a degree of objectivity and outside perspective in the working of the ICC.

However, neither the POSH Act nor the POSH Rules further elaborate on what qualifies as being 'familiar with issues relating to sexual harassment' or 'committed to the cause of women.' The regulatory framework also does not appear to prescribe any prior experience or other qualifications required of the person selected from a non-governmental organization or association to serve as an external member of the ICC.

The eligibility criteria for an external member of an ICC was one of the focal issues analyzed by the High Court of Delhi in Ruchika Singh Chhabra v. Air France India and Another (2018 LLR 697). The High Court observed that the aim of the complaints committee procedure and its underlying premise was to provide the complainant with the assurance of an inquiry mechanism which is objective, neutral and insulated from possible intrusions by the employer. To achieve that end and mete out justice in sexual harassment inquiries, it is critical that the person appointed as the external member of an ICC satisfactorily comply with qualifications prescribed by the POSH Act. In the given factual background, the external member appointed on the ICC by the employer was neither a member of a non-governmental organization or association committed to the cause of women, nor could he establish his prior experience in dealing with cases of sexual harassment. While it was argued that the candidate was a lawyer with experience in labour matters, the High Court held that such background in law would suffice to meet the criteria for appointment of an external member of the Local Complaints Committee, but not for an external member of an ICC.

(c) Employee Members

The ICC should also include two or more members from its employees, preferably individuals having legal knowledge, experience in social work, or committed to the cause of women. Such requirements, while desirable attributes to be borne in mind by employers selecting employee members, were deliberately not made mandatory in order to ease the burden of compliance in forming a committee, given that it may be practically unviable for many organizations to find employees with suitable qualifications. Accordingly, the POSH Act and POSH Rules impose a duty on the employer to organize orientation programmes and training workshops at regular intervals to supplement gaps in the knowledge of members of the ICC and to ensure that they are better placed to duly discharge their duties.

Besides the above criteria specific to each category of members, the POSH Act additionally requires that at least half of the ICC should comprise female members. As envisaged by the POSH Act, the ICC constitutes a minimum of four members (namely the Presiding Officer, the external member and a minimum of two employee members). However, as a practical measure, it is recommended to have three or an odd number of employee members to avoid a scenario where, at the end of the inquiry, the committee is evenly divided in its findings on the merits of the charges presented before it.

Disqualifications of Members

The POSH Act prescribes the following grounds which would disqualify a person from membership of the ICC:

  1. 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, the respondent or witnesses, details of inquiry proceedings and recommendations of the ICC, or action taken by the employer.
  2. If the person has been convicted, or an inquiry is pending against such person, of any offence under any law.
  3. Similarly, if the person has been found guilty, or an inquiry is pending against such person, with regard to any disciplinary proceedings.
  4. 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 applicable member(s) would have to step down and be replaced with individuals possessing suitable qualifications as applicable to the relevant category of membership. Going by a strict literal interpretation, the scope of the disqualifications appears to be rather expansive in scope, for instance there being no restriction that the conviction or pending inquiry should be in relation to a criminal matter in order to disqualify an ICC member. Further, there is no guidance as to what would amount to 'abuse of position' or 'prejudicial to the public interest' which terms are left open to interpretation by the employer, thereby potentially enabling external interference and jeopardizing the independence of the ICC.

Improperly Constituted ICC – Implications and Judicial Trends

An ICC's functioning is akin to treading a tightrope - it is imperative to conduct proceedings respecting sensitivities of participants while bringing a resolution to the matter within stipulated timelines. With the inquiry process taking up the time and energies of all participants, which could otherwise be productively engaged in the objectives of the workplace, it is in the interest of all parties that an ICC looks into any complaints received efficiently and expeditiously. Accordingly, it is imperative from an organization's perspective that its ICC is constituted validly and strictly in compliance with the POSH Act to ensure that there are no grounds at a later date for challenging the validity of the proceedings conducted, thereby obviating the requirement to start the process again from scratch.

While the POSH Act came into force as recently as December 9, 2013, there is already judicial precedent for ICCs to be reconstituted and re-inquiry of complaints due to non-compliance with the POSH Act.

For instance, in Ruchika Singh Chhabra v. Air France India and Another (2018 LLR 697) (discussed above) pursuant to the finding by the High Court of Delhi that the external member did not possess requisite qualifications, it invalidated the constitution of the ICC and set aside the proceedings of such ICC. It further directed the employer to reconstitute the ICC in strict compliance with the POSH Act, which reconstituted committee should conduct an inquiry afresh.

Similarly, in K. Hema Latha v. The State of Tamil Nadu and Others (2018 LLR 447) where the ICC of an educational institution was comprised solely of members of an administrative department of that institution, the High Court of Madras did not accept the report of the ICC which had previously conducted an inquiry into charges of sexual harassment, on the grounds that such committee was not constituted in consonance with the POSH Act. Accordingly, it directed the institution to constitute an ICC which complied with the requirements of the POSH Act in a time bound manner, which would then be required to conduct an enquiry into the complaint and submit its report to the employer after hearing all relevant parties.

Another aspect relevant to consider by organizations at the time of constituting its ICC is the apprehension of bias, where the person or persons who have been involved in the process of constitution of an ICC, are later subjected to an inquiry by such committee.

In M. Rajendran v. Daisyrani and Others ((2018) 3 MLJ 84), the proceedings of an ICC were challenged on the grounds of bias where the respondent to an inquiry was the senior functionary of a public medical college and hospital. The High Court of Madras observed that the respondent had issued the order for constituting the ICC to hear the matter against him, and that the ICC (other than the external member) comprised of members who were his subordinates and functioning under the control of such respondent. Accordingly, the High Court held that there was reasonable apprehension that any inquiry conducted by such an ICC would be vitiated by bias, and directed that the director of the Tamil Nadu State Transport Corporation, under the auspices of which the medical college and hospital was framed, constitute the ICC as required under the POSH Act to hear the specific complaint.

The High Court of Delhi rejected a claim to reconstitute an ICC on grounds of bias, in Somaya Gupta v Jawaharlal Nehru University (2018 VIII AD (Delhi) 259), as the petitioner failed to meet the requisite criteria of establishing real likelihood of bias. In such matter, a complaint of sexual harassment was filed against certain individuals, including the vice chancellor and rector of the university who were members of the executive council of the university which had constituted the ICC. The High Court noted that the executive council comprised of twenty one voting members as well as additional special invitees, and merely because two of the respondents to the complaint were members of the executive council, it would be unreasonable to hold that the ICC would be biased. Another contention for seeking the reconstitution of the ICC was that the Presiding Officer was called as a witness to the complaint. The High Court held that it was sufficient to merely substitute the Presiding Officer, who had already recused herself from the ICC in this particular inquiry, instead of reconstituting the ICC in entirety.

Conclusion

The POSH Act prescribes that failure by an employer to constitute an ICC is an offence punishable with fine for an amount of up to Rupees Fifty Thousand. Further, an employer convicted for the same offence at the second instance may be punishable with a fine for twice such amount, as well as be liable to cancellation or non-renewal of its business licenses, registrations or approvals by the government or local authorities.

However, more than the above penalties prescribed under law, an organization should be concerned about ensuing bad press associated with sexual harassment charges involving its employees, especially in this day and age of proliferation of technology and social media. Such bad press has the potential to severely dent an organization tangibly (for instance through termination of associations and blacklisting from future partnerships) as well as intangibly (such as loss of reputation as an employer in the job market, as well as an inability to attract and retain talent).

While ensuring that it complies with the POSH Act in letter and spirit, an employer should prioritize creating a supportive and non-toxic work environment through various enabling mechanisms such as holding periodical awareness and sensitization programmes. Senior executives should preferably take the lead in participating in such initiatives, to visibly demonstrate to all employees that the commitment to establishing a safe working environment runs deeper than mere lip service, and is a central tenet of the organization's DNA.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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