My inquisitive mind wandered all over the POSH Act of 2013 again, I stumbled upon the definition clause in the POSH Act, my perplexity arose in the delineation of the word “Employee” and “Employer” elucidated in Section 2(f) and Section 2(g) read with Section 4 of Act of 2013 respectively.
The Puzzle is, why can’t we have an employer in the IC?
The POSH Act says that the Internal Committee which is constituted on the foundation of the statutory requirements prescribed under Section 4 of the POSH Act, 2013, should have a Presiding Officer, who is the senior-most woman in the Organization.
Not less than two members desirably steadfast in ensuring a safe workplace for women and the other genders.
An external member, a complete outsider to the organisation who has a profound knowledge in POSH and other laws dedicated for women.
The statute enunciated that all these members should be amongst the EMPLOYEES!!!
The Purpose Behind the Provision
The primary legislative intent behind the drafting of this Act is to protect women from all forms of Sexual Harassment at workplace and for the prevention and effective redressal of the Complaints related to sexual harassment and matters incidental thereto. The effective redressal indicates a proper and fair procedure established by law, which includes the adherence to the Principles of Natural Justice and an authority formed as per the letter of law to adjudicate the same.
The Legislator in the said Act of 2013 has clearly differentiated the roles of the Employer and the roles of the IC. The legislative intent behind differentiating the IC from the Employer is for the reasons stated below:
Principle of Natural Justice – Nemo Judex in Causa Sua Which means that “no person can be a judge in a matter where they have an interest”. Here employer is the legal representative of the Company and in cases of POSH the company is also a party and has sufficient interest in the parties and the matter and may in some circumstances need to examine the employer's own conduct, actions, or policies, having the employer preside or be a part of IC creates an inherent conflict, irrespective of whether actual bias is proven.
The Employer has the Responsibility of Appointing and nominating the IC Members and implementing the recommendations passed by the IC.
The legal basis for excluding employer, in Internal Committee, is substantiated by the following authorities.
S. 2(g) of the POSH Act:
Government Departments/Organisations: The Employer is the head of the department, organisation, office, branch, unit, etc., or any other officer specifically designated by the appropriate Government or local authority.
Other Workplaces: In workplaces not covered above, the Employer is the person responsible for the management, supervision, and control of the workplace.
Meaning of Management: “Management” includes the person, board, or committee responsible for creating and administering the organisation’s policies.
In simple terms: The Employer is essentially the person or body that has overall responsibility for managing, supervising, controlling, and making policies for the workplace.
S. 4 talks about the constitution of the Internal Committee,wherein
(1) Every employer of a workplace shall, by an order in writing, constitute a Committee to be known as the “Internal Committee”
(2) The Internal Committees shall consist of the following members to be nominated by the employer, namely:
(a) A Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees
Explanation: The Act in the Said provision clearly mentions that the Presiding officer and the other members must be in the capacity of employee to maintain rationality and fairness throughout the investigation process.
S.19 of the POSH Act elaborates on the Duties of the Employer
The POSH Act differentiates the Employer and Internal Committee with the separate roles and responsibilities and clearly identifies the duties of the Internal Committee as being to conduct fair and impartial inquiries, uphold the principles of natural justice, hear both sides with no prejudice or bias, maintain confidentiality, ensure that there is safety and dignity in the workplace, and conduct an impartial inquiry according to the prescription of the Act. The IC also has to draft an inquiry report and recommendation letter according to the findings of the case and submit the same to the employer to implement the recommendations. The implementation power of those recommendations lies with the Employer.
S.13 Inquiry report
Once the inquiry is completed, the Employer must act on the findings and recommendations of the Internal Committee. The Committee submits its inquiry report to the Employer within 10 days of completing the inquiry, and the report is shared with the concerned parties. Where the allegation is not proved, the Employer is required to take no action against the Respondent. Where the allegation is proved, the Employer must take appropriate action based on the Committee’s recommendations.
R/W Rule 9
Rule 9: Manner of taking action for sexual harassment. - Except in cases where service rules exist, where the Complaints Committee 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, to take any action including a written apology, warning, reprimand or censure, withholding of promotion,
Hence the Employer and the Internal Committee have to be different bodies, and the detailed duties of the Employer are mentioned in s.19 of the POSH Act.
Duties of employer interpreted according to the statute:
Every employer has the duty to
(a) Ensure a Safe Workplace-Ensure that the workplace is safe and secure, including protection from individuals who may encounter employees at the workplace.
(b) Display Important POSH Information-Place the consequences and penalties for sexual harassment, along with the order constituting the Internal Committee, at a clearly visible location in the workplace.
(c) Conduct Awareness and Training Programmes-Organise regular awareness sessions and workshops to educate employees about the provisions of the POSH Act. The Internal Committee members must also be provided with appropriate orientation and training.
(d) Support the Internal Committee-Provide the Internal Committee or Local Committee with all necessary facilities and assistance required to receive complaints and conduct inquiries effectively.
(e) Facilitate Attendance-Assist the Internal Committee or Local Committee in ensuring that the Respondent and witnesses appear before the Committee when required.
(f) Provide Relevant Information-Make available any information or documents that the Internal Committee or Local Committee may reasonably require in connection with a complaint.
(g) Assist the Aggrieved Woman in Filing a Complaint-Where the aggrieved woman chooses to pursue criminal action, provide her with the necessary assistance to file a complaint under the applicable criminal law or any other law in force.
(h) Initiate Appropriate Legal Action-Ensure that appropriate action is initiated against the perpetrator under the applicable law. Where the perpetrator is not an employee, such action should be initiated if the aggrieved woman so desires.
(i) Treat Sexual Harassment as Misconduct-Recognise sexual harassment as misconduct under the applicable service rules and take appropriate disciplinary action in accordance with those rules.
(j) Ensure Timely Reporting-Monitor and ensure that the Internal Committee submits its reports within the prescribed timelines.
Employer with of the powers and responsibilities ordinarily vested in them, is someone with the ultimate control over the management and affairs of the establishment, This interpretation is consistent with the approach adopted by the Supreme Court in labour law jurisprudence, which recognizes the Managing Director as the person exercising ultimate control over the affairs of the establishment.
Rashi v. Union of India (MANU/DE/2178/2020): The Delhi High Court held that employers must ensure the composition of the Internal Committee inspires confidence. The Court specifically recommended that members should not be drawn from the Board of Directors or senior management, to avoid any conflict of interest.
A v. B and Others (Delhi High Court, W.P. (Civil) 1103 of 2020)
This case gave a liberal, functional interpretation of "employer." The person in question held the post of secretary of the institution and was, in actual practice, responsible for managing the day-to-day affairs of the office where the aggrieved woman worked. The Court held that this made him the "employer" under Section 2(g) of the POSH Act even though he wasn't formally the "head" of the organisation. The test applied was functional control, not just designation or title.
The Bombay High Court, in the case of [Dr David G. Samuel v Collector/District Magistrate, Pune, and Others], the Court opined that the objective of the POSH Act is not to protect the person accused of harassment but to ensure that the person who is “the employer” does not influence the Internal Committee so as to render the inquiry meaningless.
Conclusion
And with that, this elaborate and, at times, confounding discussion comes to an end with one simple thought: every role matters, and every role must be filled by the right person. When the question is “Whom should we appoint?”, the answer should be simple; someone who is suited to the role. To make that choice, we must first understand the role itself, the statutory framework, and the judicial guidance surrounding it.
I conclude this discussion with one fundamental principle: look beyond the title; look at the role. An Employer has a distinct responsibility, an Employee has a distinct role, and the Internal Committee forms a crucial ecosystem within the organisation. For this ecosystem to function effectively, fairly and independently, the Employer must understand its own role and exercise due diligence while constituting the Internal Committee. The right people must be chosen, individuals who can discharge their responsibilities with neutrality, independence, fairness and integrity. Because ultimately, a strong Internal Committee is not merely about having the right names on paper; it is about having the right people for the right role.
