COMPOSITION, ELIGIBILITY AND APPOINTMENT PROCESS OF ICC MEMBERS

This article is written by Saloni of 8^th Semester of BBALLB of Bhagat Phool Singh Mahila Vishwavidyalaya, Department of Laws Khanpur Kalan, an intern under Legal Vidhiya

ABSTRACT

In order to give every woman access to a safe, secure, and supportive environment free from sexual harassment, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (also known as the “PoSH Act”) was passed. Since the POSH Act emphasizes prevention, prohibition, and reparation, one of an employer’s primary responsibilities is to set up an Internal Complaints Committee (or “ICC”). One measure to address sexual harassment at work is the establishment of an Internal Complaints Committee (“ICC”), whose duties include hearing complaints from women who have experienced harassment, conducting an investigation, and recommending to the employer what appropriate action should be taken after the investigation. Any organization with ten or more employees must establish an ICC.

KEYWORDS

Sexual Harassment, Sexual Assault, Internal Complaint Committee, Provisions of POSH Act

INTRODUCTION

The Prevention of Workplace Sexual Harassment Act has been enacted with the objective of preventing and safeguarding women from sexual harassment at work and ensuring that accusations of sexual harassment are handled successfully. The sexual harassment of woman at work place (prevention, prohibition and redressal) act, 2013 is commonly referred as “POSH act” act is a special type of legislation that was enacted with the aim of creating safe work environment for women in the country. The Vishakha guidelines, issued by the Hon’ble Supreme Court of India in the matter of Vishaka and Ors vs. State of Rajasthan and Ors., led to the creation of the POSH Act. Since the PoSH Act emphasizes prevention, prohibition, and redress, one of an employer’s primary responsibilities is to set up an internal complaints committee. Employers are required to establish an Internal Complaints Committee (ICC) in accordance with Section 4 of the POSH Act for any workplace with ten or more employees. Both governmental and private entities have an obligation to uphold this. The initial internal body is essential to ensuring that the POSH Law’s objectives are realized and that its provisions are carried out without interruptions.

MEANING OF SEXUAL HARASSMENT

The definition of sexual harassment under the POSH conduct is quite broad; it covers any unwanted behavior or conduct that has a sexual overtone and is done without consent. Section 2(n) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 provided India with a definitive definition of sexual harassment. This comprises:

1. Physical contact and advances 
2. Demand or request for sexual favours 
3. Making sexually colored remarks 
4. Showing pornography 
5. Any other unwanted sexual behavior, whether it be verbal, physical, or nonverbal.

CONSTITUTION OF INTERNAL COMPLAINT COMMITTEE:

According to section 4(1), an employer must formally notify the creation of an internal complaint committee by a written order, and the CEO or Board must also approve it. Should the same organization have many offices, the committee must be established in each office or unit.

COMPOSITION OF INTERNAL COMPLAINT COMMITTEE

The PoSH Act mandates that all employers with ten or more employees create an ICC by means of a formal written order. The following is the composition of the ICC as stated in Section 4 of the 2013 Act:

i). Presiding officer/ chairperson:must be a senior female employee of the organization

ii). Two minimum members amongst employees:These workers need to be committed to the cause of women, cognizant of gender issues, and knowledgeable about relevant legal issues

iii). one external member:from a non-governmental organization (NGO) or association dedicated to women’s issues including sexual harassment issues

QUALIFICATIONS OF MEMBERS OF ICC

i). Presiding officer/ chairperson:According to the POSH Act, the Presiding Officer ought to be a female employee who has a senior position in the company. If a senior officer is not accessible, another officer from another office or administrative unit at work will be nominated in their place. Additionally, if there are no senior female employees in these offices, the Presiding Officer will be chosen from among the employees of the same company in any other location, as well as from any other department or organization.

ii). Two minimum members amongst employees:The ICC should also include two or more members from its employees. The maximum number of people that can be added to the committee is unlimited. Only workers who can contribute to the committee and follow the rules should be nominated by their employers. The POSH Act and Rules state that in order to ensure that ICC members are better prepared to fulfill their responsibilities; employers must regularly arrange orientation programs and training workshops to close any knowledge gaps.

iii). External members:The PoSH Act mandates that the ICC should also include an external member in the committee. A person who fits this description should have experience with sexual harassment concerns and come from a non-governmental group or association that supports women’s rights. The inclusion of an external member was justified by the fact that they are not an employee of the employer and can provide an objective and external viewpoint on the subject. For the purposes of the ICC, the POSH Act does not specify what constitutes being “committed to the cause of women” or “a person familiar with issues relating to sexual harassment.

As they nominate the aforementioned members, employers should also be aware of:

• After being nominated, members shall serve in office for a maximum of three years.
• According to the PoSH Act, any employee in charge of management, supervision, or control of the workplace is considered an employer and is not eligible to join ICC.
• In every workplace (i.e., all administrative units or offices, branch, etc.), the Employer must establish an ICC.

DISQUALIFICATION OF MEMBER OF ICC

The following reasons may also result in the ICC members’ disqualification:

• Information about matters that must be kept confidential under the POSH Act; examples include the identity of the complainant, the respondent, or witnesses; the details of the inquiry proceedings and the ICC’s recommendations; or the action taken by the employer.
  • If the individual has been found guilty of any crime under any law, or if an investigation was initiated against them.
  • The same applies if the individual has been found guilty or if there is an ongoing investigation about any disciplinary actions taken against them.
  • When the individual has misused their position, making it detrimental to the public interest for them to remain an ICC member.

In the event of any of the aforementioned circumstances, the member would be required to resign and be replaced by someone having the appropriate credentials for the membership level. The POSH rule requires all organizations to post the names and contact information of their current IC members on their official website and in conspicuous locations around the organization.

TENURE OF MEMBERS OF ICC:

The Internal Complaints Committee members’ terms of office are outlined in Section 4(3) of the POSH Act. The POSH Act’s Section 4(3) describes the terms of office of the members of the Internal Complaints Committee.

POWERS OF ICC

ICC has the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit as per section 11(3) in respect of the following:

• In accordance with the Internal Complaints Committee Policy, it has the authority to open an investigation into a complaint of sexual harassment at work.
• IC has the authority to call parties and witnesses to testify before the committee.
• It has the authority to call witnesses for examination at its discretion if the Committee members think it essential.

FUNCTION AND RESPONSIBILITY OF ICC

Since the POSH Act does not define the duties and responsibilities of an ICC, it can be summarized as follows in order to address the issue of workplace sexual harassment effectively:

• Become aware of the problem of sexual harassment in the workplace,                                                                                  
• Become familiar with the Policy as it has been adopted by the employer;
• Understand the law and the authority the ICC has been given under the PoSH Act
• Always be ready to respond to complaints.
• Help the plaintiff submit a formal complaint,
• To refrain from forming any preconceived beliefs about the accused or the offended woman/complainant
• Assist the company by implementing training and sensitization initiatives for each employee.
• Keep meeting minutes, grievances, and procedural documentation and files
• Maintain the confidentiality of the received complaint
• To conduct fair inquiry and offer opportunity to all parties to be heard, Make sure everyone understands their obligations and rights
• Compile all the evidence and carry out the required interviews,
• Make sure the investigation is finished by the deadline specified by the PoSH Act
• Send the employer its recommendations and make sure the employer follows the aforementioned recommendations.

CONSEQUENCES OF NON-COMPLIANCE OF PROVISION OF POSH ACT

All organizations are required by law to abide by the POSH Act, and there are serious repercussions for breaking the rules. Establishing an Internal Complaints Committee is one of the employer’s mandated responsibilities. The Act stipulates that failing to comply with this will result in a 50,000 rupee fine.

If the same offense is committed again, there will be a double penalty of 100,000 rupees, and in certain cases, the offending organization’s license may even be revoked or deregistered.

CASE LAWS

Jaya Kodate vs. Rashtrasant Tukdoji Maharaj Nagpur University, 2014[1]

The Court established that while the Internal Complaints Committee was being formed, the members selected have to be dedicated to the cause of women, have social work experience, or be knowledgeable about the law. Employers should make an attempt to replace an Internal Complaints Committee member if any parties to the matter believe that they are prejudiced.

Ruchika Singh Chhabra vs. Air France India, 2018 [2]

According to section 4(2)(c) of the POSH Act, which mandates that one member of the Internal Complaints Committee (“ICC”) be from a non-governmental organization or association dedicated to the cause of women, or from a person knowledgeable about the issues surrounding sexual harassment, the court held that the ICC was not duly constituted. The court ruled that the International Criminal Court’s establishment, the proceedings that followed, and the report it produced were all void, and it ordered the ICC to be reconstituted in 30 days so that new research could be done.

Ashok Kumar Singh vs. University of Delhi, 2017[3]

The court decided that in a sexual harassment case, the Internal Complaints Committee (“ICC”) must confirm and assess the victim’s ability to testify in front of them without fear of retaliation. The ICC may take additional steps to ensure that the witness’s statement is refuted or corrected by the offender in any way, such as giving the offender a statement and asking for his objections to it, if it determines that the victim is weak and cannot withstand any cross-examination. A questionnaire was used to cross-examine witnesses as part of the method the court established for conducting inquiry proceedings before the ICC.

Vidya Akhave vs. Union of India, 2017[4]

The employer must adequately abide with the obligations imposed upon it by the POSH Act, the court noted. The Court further ordered that employers establish an efficient system to prevent sexual harassment of women at work, that male employees be made aware of the concerns of female employees, and that the Internal Complaints Committee handle sexual harassment complaints promptly. In addition, the Court decided that unless the punishment was egregiously out of proportion, it would not intervene in an order of punishment issued by the Internal Complaints Committee in response to a sexual harassment accusation.

CONCLUSION

The government authorities have taken a very thorough approach to addressing the problem of sexual harassment of women in the workplace. Addressing the significant issue of sexual harassment comfortably is made feasible by the ICC’s functions and powers. The Committee seeks to implement the Act’s three main goals—Prohibition, Prevention, and Redressal of the Sexual Harassment Problem—while enabling women to work in the workplace with dignity.

REFERENCES

[1]. https://www.khuranaandkhurana.com/2022/07/20/the-internal-complaints-committee-under-sexual-harassment-at-workplace-prevention-prohibition-redressal-act-2013/

[2]. https://www.linkedin.com/pulse/internal-complaints-committee-under-posh-act-sony-bhatt

[3]. https://www.khuranaandkhurana.com/2022/07/20/the-internal-complaints-committee-under-sexual-harassment-at-workplace-prevention-prohibition-redressal-act-2013/

[4]. https://www.digilaw.in/posh-compliance

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[1] (Jaya Kodate Vs Rashtrasant Tukdoji Maharaj Nagpur University, 2014), https://www.casemine.com/judgement/in/58117ed42713e179478c0cbe

[2] (Ruchika Singh Chhabra vs M/S. Air France India And Anr., 2018), https://indiankanoon.org/doc/158080828/

[3] (Ashok Kumar Singh vs University Of Delhi & Ors, 2017), https://indiankanoon.org/doc/127629655/

[4] Prevention of Sexual Harassment at Workplace (POSH) Act 2013.(n.d.-c).DigiLaw India https://www.digilaw.in/posh-compliance

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