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Only a properly constituted sexual harassment committee will inspire confidence

It is well known that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“the Act”) requires every organisation that employs over 10 people to constitute an “internal committee” (“IC”) at each department or branch or unit. I’ve already written about what the Act says about how an IC must be constituted. But what happens when an IC is constituted, but not in accordance with these statutory instructions?

 Let’s take the (completely fictional) case of Sheela, a deputy manager at the firm where she has been employed for over three years. Earlier this year, soon after she was transferred to its Bombay branch, Rahul, a senior manager, asked her out on a date. Sheela told Rahul that she was not interested in dating him. Rahul however, persisted with his attentions.

Recently, he mentioned to Sheela that he enjoys a high level of trust with Ms. N. Tewari, a partner of the firm and that he would recommend Sheela for a promotion if she accompanied him for a weekend holiday in Goa. Sheela complained against Rahul’s unwelcome attentions to the firm’s IC.

The IC consisted of:

  1. Ms. N. Tewari, Associate Partner, (Presiding Officer)
  2. Ms. M. Shah, Senior Manager, (Internal Member)
  3. Mr. R. Nair, Senior Manager, (Internal Member)
  4. Ms. S. Ghai, from Kumari Karagir Sanstha, (External Member)

After conducting its inquiry, the IC reached the conclusion that Rahul was guilty of sexual harassment only for the instance when he offered Sheela preferential treatment based on her acceptance of his improper advances. For this offence, the IC recommended that Rahul be shifted to a different branch so that he would be unable to contact Sheela on a daily basis.

Unhappy with this verdict and the quantum of punishment, Sheela decided to file an appeal against the final report of the IC, with the Appellate Authority.

Under Rule 7 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013, every IC must act in accordance with rules of natural justice, one of which is the rule against bias. The fact that Rahul had mentioned that he enjoys a high level of trust with the Presiding Officer of the IC is enough reason for Sheela to have sought Ms. Tewari’s recusal from the post, while adjudicating the complaint.

Ms. Tewari is also an associate partner, responsible for the management and supervision of the firm. She also exerts control over the firm’s business. Therefore, it would be correct to identify Ms. Tewari as an “employer”, and so cannot be nominated to the IC.

There is emerging precedent from high courts that highlight the need for well-constituted ICs. In Manesh v. District Educational Officer, Kottarakkara, the Kerala High Court has clearly outlined the idea that the incorrect constitution of an IC affects its outcomes. In that case, one of the challenges highlighted the incorrect composition of the IC which consisted only of internal members and did not have an external member, as required under Section 4 (c) of the Act. Without considering the merits of the matter, the High Court directed the petitioner to challenge the composition of the IC before the appropriate authority. Until the composition of the IC was no longer disputed, the outcomes of the inquiry carried out by it were not applicable.

It is evident that the composition of an IC is critical to its legality and to the binding authority of its recommendations. For the actions of an entity to have value, it must be capable of acting and must also have the authority to act.

Keeping this in mind, it is important for Sheela to mention these challenges to the composition of the IC while filing her appeal. The IC should have investigated the piece of evidence about the respondent’s closeness to its Presiding Officer without the involvement of either the respondent or the Presiding Officer. Section 4 (5) (d) permits the removal of a Presiding Officer of an IC when “[such person] has so abused [his] position as to render [his] continuance in office prejudicial to public interest.” So if the statement is indeed found to be true, then Ms. Tewari must no longer be a part of the IC hearing the complaint. Her continued presence on the IC would taint the entire proceedings with bias.

The people that comprise an IC decide the fate of the people who bring matters to the forum, seeking justice. It is important to create a forum that inspires confidence. For that, the process must not only be transparent and free from bias, it must also be reliable.

Suhasini Rao is the Founder, Director (Products and Operations) at CubeRoute.

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