The short answer to this is yes you can adjourn your proceedings.
Some safeguards may however be ensured:
The 90-day time period under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 has been described as a mandatory requirement. Section 11(4) of the enactment uses the words “shall”.
Unlike the Protection of Women from Domestic Violence Act, 2005 which states a 60 day time period for disposal of applications under that act but with the introductory words “the Magistrate shall endeavour”, no such saving words have been used in the POSH enactment.
Therefore no relaxation is envisaged by the enactment itself.
It may however be reasonable to assume that the 90-day requirement is a reference to 90 working days. It may also not be usually expected that a committee comprising of employees would be required to work on their paid leave days and statutory holidays.
This however may not be relevant where employees, who are committee members, have not been placed on leave during the Covid – 19 lockdown.
On account of the above, and if the Covid-19 lockdown were to be extended, best efforts ought to be made to continue the proceedings so that inquiries are concluded in 90 working days.
If this is not possible then proceedings can be adjourned with the safeguards mentioned in answer to question 1 and this can be documented in the final inquiry report.
Also, the inquiry report could as a good practice, state reasons in writing for the delay as force majeure or reasons beyond the control of the Internal Committee on account of the Covid – 19 lockdown.
This delay may also need to be reported in annual reports submitted to relevant authorities under the subject law.
The number of cases pending for more than 90 days are to be reported in the annual return submitted under Section 21 (1) of the Sexual Hrassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the “Act” or the “PoSH Act”) read with Rule 14 of the rules made under the Act.
Under Section 19, it is the responsibility of the employer to monitor the timely submission of reports by the Internal Committee.
The subject Act further provides under Section 26 that any contravention by an employer of the provisions of the Act shall be punishable with a fine which may extend to fifty thousand rupees.
It is however, highly unlikely that a monitoring authority would impose such a fine when no other extenuating circumstances exist other than the Covid-19 lockdown for such delay.
Yes, either the AW or the Respondent may bring up a grievance with the employer on time-limits not being adhered to as the employer is responsible under the Act for such monitoring.
This however would not usually have any bearing on the inquiry proceedings and by itself may not be taken as bias against either party or a vitiation of their rights.
However, as a good practice, due care ought to be taken for preservation of evidence under the control of the employer that may have been submitted by either party such as a request for CCTV recordings or chat or mail backups.
It is reasonable to assume that if the same were to not be preserved during the period of delay, this may substantively impact the parties and give them a cause of appeal.
Yes. There is no bar in law for IC members convening for proceedings remotely through video conferencing.
On account of the coronavirus lockdown, even the MCA has allowed board meetings to be held through video conferencing or other audio-visual means. Parallels can therefore be drawn.
As a matter of abundant caution however, changes in the service rules / disciplinary processes of an organization to recognise such proceedings can be done.
It is notable that the MCA also states audio-visual facilities for meetings. Hence all members connecting only telephonically when meeting the aggrieved woman, the respondent or witnesses may not suffice.
Quorum and proof of quorum of the Internal Committee ought to be maintained for all inquiry meetings.
Depositions ought to clearly state that they are being taken on oath and best efforts ought to be made that the depositions are circulated within the committee members vide email and also shared with the deposing party as soon as possible and preferably on the same day for their confirmation within the same day.
Cross-examinations may be conducted through written interrogatories, i.e., lists of questions submitted in writing by the party wishing to cross-examine.
List of interrogatories is a practice and method recognised also by the Supreme Court guidelines in its own inquiries for sexual harassment. However, it is best that service rules and policies on disciplinary proceedings allow for this method.
This is a time to reduce all dependency on wet signatures. However, most individual don’t have digital signatures.
As alternatives, confirmations may be taken on email or software such as adobe may be used. It would be best that once the present restrictions are over, documents are signed off on again. This is particularly for reports of findings where abundant caution ought to be exercised.
Finally, as long as rules of natural justice are followed, the Internal Committee is lawfully constituted and proceeds with a quorum - reasonableness and common sense have an answer for almost every dilemma in these challenging times.
Service Rule is an organised document of an organization envisaged with Code of Conducts of the organisation. It is a set of rules and regulations that inter alia defines employee policies, sets out a code of conduct, identifies misconduct and sets out disciplinary procedures for the same. When an organization has service rules, they may, to the extent set out in the PoSH Act, be exempted from following procedures for inquiries therein.
It has to be seen if the senior most person is the employer itself. because then complaint will got to local committee at district level (LC). IF the senior person is not the employer then the IC can take it up as is as long as the IC was constituted correctly (even if it has junior members to the respondent). The IC should not have been set up ad hoc i.e., after the complaint was made.
An SC/ST member is not required in the internal committee but a local committee has such requirement.
Bias needs to be apparent and needs to be complained about at the earliest time. The complaint has to be made to the employer against the particular committee member you believe is biased. Usually, when complaint of bias comes at the earliest stage of complaint, then employer will consider asking the member to step down / not participate in the quorum.
Absolutely. Her leal heirs can complain on her behalf as per the PoSH Act.