When a complaint about sexual harassment is reported, the investigation should begin as quickly as possible. The investigation process needs to be prompt and thorough, and it may assist the process by temporarily transfer the harasser, victim or witness to another department or shift.
Legal provisions
As per the act, Section11(4), the inquiry should be completed within a period of 90 days (Section 11(4)).
In case of pendency: During the pendency of the inquiry of the ICC or LCC, on a written request by the aggrieved woman, the ICC or LCC can recommend the following to the employer (Section 12(1) of the Act):
- Transfer the aggrieved woman or the respondent to any other workplace or
- Grant leave to the aggrieved woman up to a period of 3 months or
- Grant such other relief to the aggrieved woman as may be prescribed
- The leave granted to the aggrieved woman under Section 12(1) is in addition to the leave that she is otherwise entitled.
The employer shall implement the recommendations made by the ICC or the LCC and send the report of such implementation to the ICC or the LCC. (Section 12(3)).
On completion of Inquiry:
Option 1: If the ICC or the LCC arrives at the conclusion that the allegation against the respondent has not been proved, it will recommend to the employer and the District Officer that no action is required to be taken. (Section 13(2) of the Act)
Option 2: If the ICC or the LCC arrives at the conclusion that the allegation against the respondent has been proved, it will recommend to the employer and the District Officer,
Option 3: If the ICC or LCC arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document, it may recommend to the employer or the District Officer to take action against the woman or the person who has made the complaint. (Section 14(1) of the Act.).
Provisions for appeal
A person aggrieved due to the following conditions may prefer an appeal to the Court or Tribunal or in such manner (Section 18(1) of the Act):
- A recommendation under Section 13(2) of the Act: If the ICC or the LCC arrives at the conclusion that the allegation against the respondent has not been proved, it will recommend to the employer and the District Officer that no action is required to be taken.
- A recommendation under Section 13(3) i/ii: If the ICC or the LCC arrives at the conclusion that the allegation against the respondent has been proved, it will recommend to the employer and the District Officer.
- A recommendation under Section 14(1/2): If the ICC or LCC arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document, it may recommend to the employer or the District Officer to take action against the woman or the person who has made the complaint.
- A recommendation under Section 17: If any person contravenes the provisions of Section 16 of the Act, he shall be liable to a penalty in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist, in such manner as may be applicable.
- Non-implementation of recommendations.
Inquiry as per Act
As per the PoSH Act, sections on the inquiry of sexual harassment are listed below:
Section 11. Inquiry Into complaint
Sub-section 1. Subject to the provisions of section 10, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make an inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code, and any other relevant provisions of the said Code where applicable:
Sub-section 2. Notwithstanding anything contained in section 509 of the Indian Penal Code, the court may, when the respondent is convicted of the offense, order payment of such sums as it may consider appropriate, to the aggrieved woman by the respondent, having regard to the provisions of section 15.
Sub-section 3. For the purpose of making an inquiry under sub-section (I), the Internal Committee. or the Local Committee, as the case may be, shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely: -—
- summoning and enforcing 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.
Sub-section 4. The inquiry under sub-section (I) shall be completed within a period of ninety days.
Section 12. Action during the pendency of inquiry
Sub-section 1. During the pendency of an inquiry, on a written request made by the aggrieved woman, the Internal Committee or the Local Committee, as the case may be, may recommend to the employer to—
- transfer the aggrieved woman or the respondent to any other workplace; or
- grant leave to the aggrieved woman up to a period of three months; or
- grant such other relief to the aggrieved woman as may be prescribed.
Sub-section 2. The leave granted to the aggrieved woman under this section shall be in addition to the leave she would be otherwise entitled.
Sub-section 3. On the recommendation of the Internal Committee or the Local Committee, as the case may be, under sub-section (1), the employer shall implement the recommendations made under sub-section (1) and send the report of such implementation to the Internal Committee or the Local Committee, as the case may be.
Section 13. Inquiry report.
Sub-section 1. On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties.
Sub-section 2. Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter.
Sub-section 3. Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer or the District Officer, as the case may be—
i.to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;
ii.to deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, in accordance with the provisions of section 15:
Provided that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman:
Provided further that in case the respondent fails to pay the sum referred to in clause (II), the Internal Committee or, as the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.
Sub-section 4. The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him. Punishment for false or malicious complaints and false evidence.
Section 14. Punishment for false or malicious complaint and false evidence
Sub-section 1. Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document.
Sub-section 2. Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that during the inquiry any witness has given false evidence or produced any forged or misleading document, it may recommend to the employer of the witness or the District Officer, as the case may be, to take action in accordance with the provisions of the service rules applicable to the said witness or where no such service rules exist, in such manner as may be prescribed.
Section 15. Determination of compensation
For the purpose of determining the sums to be paid to the aggrieved woman under clause (ii) of sub-section (3) of section 13, the Internal Committee or the Local Committee, as the case may be, shall have regard to:
- the mental trauma, pain, suffering, and emotional distress caused to the aggrieved woman;
- the loss in the career opportunity due to the incident of sexual harassment;
- medical expenses incurred by the victim for physical or psychiatric treatment;
- the income and financial status of the respondent;
- feasibility of such payment in a lump sum or in installments.
Section 16. Prohibition of publication or making known contents of complaint and inquiry proceedings
Notwithstanding anything contained in the Right to Information Act, 2005, the contents of the complaint made under section 9, the identity and addresses of the aggrieved woman, respondent, and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner:
Section 17. Penalty for publication or making known contents of complaint and inquiry proceedings
Where any person entrusted with the duty to handle or deal with the complaint, inquiry or any recommendations or action to be taken under the provisions of this Act, contravenes the provisions of section 16, he shall be liable for a penalty in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist, in such manner as may be prescribed.
Section 18. Appeal
Sub-section 1. Any person aggrieved from the recommendations made under sub-section (2) of section 13 or under clause (i) or clause (ii) of sub-section (3) of section 13 or subsection (l) or sub-section (2) of section 14 or section 17 or non-implementation of such recommendations may prefer an appeal to the court or tribunal in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist then, without prejudice to provisions contained in any other law for the time being in force, the person aggrieved may prefer an appeal in such manner as may be prescribed.
Sub-section 2. The appeal under sub-section (1) shall be preferred within a period of ninety days of the recommendations.
