Employee’s dignity, career development, mental health, as well as the safety are affected by the sexual harassment at work. The POSH Act of 2013 establishes the systems required to mainly prohibit the harassment and solve complaints. However, at times Internal Committees may overlook a complaint, postpone investigations, or simply not start any investigations. An employee may note this kind of inaction, file complaints and go to the needed authorities in order to find a legal solution for the issue.
Understanding the POSH Act, 2013
The Sexual Harassment Act is what people commonly refer to as the POSH Act. This particular Act has been enacted to set certain laws as well as the provisions which are handy for curbing sexual harassment happening at workplaces.
Sexual harassment means any unwelcome act or the behaviour such as making the physical contact or using the physical advances, saying sexually-coloured remarks, asking for any sexual favours in one way or other, watching pornography, as well as doing something that is very physically, verbally or non-verbally sexual in nature.
The law mentions certain cases like making a promise that makes one feel there will be a better treatment and even fear of being treated badly, thus making a person uncomfortable in his/her job.
An aggrieved woman is eligible to submit a written complaint to the Internal Committee in accordance with Section 9, to the Local Committee, if such a case is relevant, and this should be done within three months of the occurrence of the incident or of the last incident in a chain. In case it is required, the committee is allowed to prolong this time for another three months but under certain statutory conditions.
What Is the Internal Committee?
As per Section 4, the employer at workplace with 10 or more than 10 workers must constitute Internal Committee to receive as well as address complaints of sexual harassment.
The committee generally consists of the senior woman employee as the Presiding Officer, employee members, as well as the external member familiar with the issues relating to the sexual harassment or women’s rights. At least half of its nominated members should be women.
The Internal Committee is then expected to provide the fair, confidential, as well as impartial process. It must not dismiss the complaint merely because the allegations are uncomfortable for the management or involve the senior employee.
Where a workplace has fewer than 10 workers, or a complaint is against the employer himself or herself, then the statutory mechanism generally involves the Local Committee constituted under Act.
What Happens When the Internal Committee Ignores a Complaint?
There are different levels of ignoring complaints. In some situations, the body might only fail to confirm receipt of the complaint, or not communicate the steps afterwards, or delay the necessary actions without any excuse.
Such action may constitute a breach of the Act but in each particular case one has to differentiate between administrative delay, justified non-action, and a complete failure to perform statutory duties.
The complainant has to keep the original complaint, confirmation of receipt, emails and files concerning the inactivity of the organization. A written reminder asking for confirmation of receipt, present situation and further steps can create a clearer picture.
If the body is still not acting, the complainant needs to raise the issue through the proper channels rather than waiting for informal guarantees.
Legal Duties of the Internal Committee
The Internal Committee has the specific responsibilities as per POSH Act. These include:
- Receiving the written complaints of workplace sexual harassment as per Section 9.
- Conducting the inquiries as per Section 11 as well as the applicable rules.
- Following the principles of natural justice as well as providing both the parties a fair opportunity to be heard.
- Recommending interim relief where appropriate under Section 12.
- Maintaining confidentiality as required under Section 16.
- Preparing the findings and recommendations as per the statutory framework.
- Submitting reports to employers as well as the relevant authorities as prescribed.
- Handling the complaints without bias, intimidation, or any improper interference.
Under Section 11, if the party involved in the inquiry is an employee, the investigation will be conducted in accordance with the service rules in force. If no service rule is available, the statutory procedure will apply instead.
The committee must ensure observance of the timeline prescribed in the statute. Generally, the inquiry must be completed within a period of 90 days, and the report on the completion of the inquiry must be provided within ten days of its completion as required by the statute.
In the absence of the requisite action, the failure to perform his statutory duties may lead to additional measures being taken, depending on the situations.
Approaching the Local Committee
An employee may consider approaching the Local Committee where the statutory conditions for its jurisdiction are satisfied. According to Section 6, in a scenario where the Internal Committee does not exist because the establishment has less than ten workers, or if the complaint is registered against the employer before the Internal Committee, the District Officer shall set up a Local Committee.
Even if the Internal Committee does exist and the complaint is ignored, it cannot be said that the Local Committee replaces the Internal Committee whenever there is a complaint. It is important for the employee to provide relevant details about the complaint to the District Officer in order to know what to do.
The complaint should contain information about the case, the complaint made to the Internal Committee, the proof of submission or making a complaint there, and the proof of no action taken.
Filing a Complaint Before the District Officer
The District Officer plays an important role in implementing the POSH framework, including constituting the Local Committee and performing functions assigned under the Act.
An employee facing persistent inaction may submit a written representation to the District Officer, describing the complaint, the date of submission, the committee’s response or silence, and the relief requested.
The representation should request appropriate intervention within the authority’s statutory powers. The District Officer may guide the complainant toward the competent committee or any other appropriate remedy.
The employee should retain the dated copy of representation as well as the proof of delivery. A representation does not necessarily replace the statutory complaint procedure or extend the limitation period.
Remedies Available Under the POSH Act
The appropriate remedy depends on the nature of failure and relief sought.
First, the employee may request for the written acknowledgment as well as an update from the Internal Committee. Second, the complainant may then escalate the matter to the employer, provided escalation does not compromise independence of the inquiry or then involve improper pressure.
Third, the employee may approach the District Officer or Local Committee where the Act provides jurisdiction. Fourth, the employee may seek legal advice about judicial intervention if a statutory authority fails to discharge its legal obligations.
If an inquiry establishes sexual harassment, the committee may recommend action under applicable service rules and compensation in accordance with Section 13 and Section 15, as applicable. The employer must act on the recommendations within the statutory period.
The available remedy is not necessarily the immediate punishment of the respondent. The statutory process requires for the fair inquiry as well as an outcome supported by evidence.
Appeal Against an Inquiry Report or Recommendation
Section 18 of the POSH Act provides a mechanism for appeal for the aggrieved person in respect of the recommendations under the Act or actions as required in accordance with the relevant service rules and procedure.
An appeal could be filed, depending on the case, in the case of the recommendations made under Section 13(2), actions mentioned under Section 13(3), the recommendations made under Section 14(1) or Section 14(2) etc. and for the non-implementation of the recommendations.
In general, the appeal must be made within 90 days of the recommendations or actions specified in Section 18 of the Act. However, it is also important to note that an appeal based on the result of the inquiry cannot be confused with the grievance that nothing has been done by the committee.
If the report or any recommendation, which is subject to an appeal does not exist, then it is advisable for the employee to seek proper legal counsel on how to proceed with the grievance rather than thinking that in all cases Section 18 is applicable.
Approaching the High Court or Other Appropriate Authorities
If a statutory committee or a governmental body is unable to perform its legal obligation, it may be necessary to seek judicial intervention in the appropriate case. Depending on the circumstances, it may be possible to file a petition under Article 226 before the jurisdictional High Court.
The appropriate remedy is determined by the authority being complained against, the legal obligation being ignored, the present alternatives available, and the evidence of inaction. The courts usually don’t just replace the statutory committee and decide the disputed facts by the dismissal gesture.
The different criminal proceedings may be relevant where the alleged acts are crimes in accordance with the relevant criminal law. Complaints made under POSH and complaints made under criminal law serve different goals, so one does not cancel out the other.
It is necessary for a person to seek legal advice before choosing a particular forum and this becomes clear when limitation terms or urgent measures need to be taken.
Protection Against Retaliation and Victimisation
Employees might worry about losing their jobs, moving, getting terminated, getting a bad review, feeling bullied, or facing peer pressure after they report harassment at work.
Section 12 permits the committee that is conducting the inquiry to recommend certain interim actions at the request of the complainant that involve transferring one of the parties involved in the complaint or the victim taking a leave of absence.
Section 16 places a restriction on any dissemination of details related to the complaint, including the matter of identity of the complainant, process of inquiry, recommendations, or actions taken unless permitted by the applicable laws.
Employees are advised to collect evidence of retaliation and convey it to the appropriate authorities. A legitimate complaint must not provide the parties with justification to engage in intimidation of the complainant. Confidentiality obligations apply to the parties as well, and there should be no unnecessary distribution of information related to the complaint.
Practical Steps an Employee Should Take
The employee whose POSH complaint is being ignored should:
- Keep the dated copy of complaint as well as proof of submission.
- Send the written reminder requesting the acknowledgment and status.
- Maintain chronological record of the incidents as well as the committee communications.
- Preserve the relevant emails, messages, documents, as well as the witness details lawfully.
- Identify the correct Internal Committee or the Local Committee for the workplace.
- Approach District Officer wherever it is appropriate.
- Seek for legal advice regarding the limitation periods and the judicial remedies.
- Document retaliation as well as the request for suitable interim protection where it is warranted.
- Avoid sharing confidential inquiry details publicly or on social media.
- Keep copies of each and every representation as well as the acknowledgment received.
Conclusion
The lack of response from an Internal Committee to a POSH complaint should not leave an employee high and dry. The laws laid out in the POSH Act include clear duties, procedures that must be followed, confidentiality assurances, and provisions for redressal. The employee should keep written records of the lack of action and compromise with the relevant authority so as to get a remedy that they may be entitled to. Seeking legal advice promptly will help with making a decision on whether to escalate the video to a higher authority, appeal, or seek judicial redress.
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FAQs
1. What should I do if at all the Internal Committee ignores my POSH complaint?
You can send a written reminder, preserve proof of the submission, as well as document the committee’s inaction. Depending on the circumstances, you can approach the District Officer or seek legal advice about appropriate remedy.
2. Can I approach the Local Committee if at all my Internal Committee does not respond?
Not automatically in each and every case. The Local Committee has the statutory jurisdiction in the specified circumstances, including any certain small establishments as well as the complaints against employers. You need to seek guidance on an appropriate route.
3. Is there a time limit for filing the POSH complaint?
As per Section 9, the ordinary period is 3 months from the incident or last incident in a series. The committee may extend it by up to 3 additional months for the reasons recorded in writing, subject to Act.
4. Can I appeal if at all I disagree with the committee’s decision?
The Section 18 provides appeal for the specified recommendations or actions, generally within 90 days, subject to any applicable rules. Complete inaction may require different remedies.
5. Can I approach the High Court if the committee fails to act?
In appropriate cases, the judicial intervention may be available as per Article 226. Its suitability depends on authority involved, legal duty, facts, as well as any available alternative remedies.
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