Rights of the Complainant and the Respondent under POSH Act

In this edition of #todayinposh, I want to talk about the rights of the Complainant as well as the Respondent. 

Under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), both the complainant and the respondent have several rights to ensure their protection, fair treatment, and justice. However, in my experience, I often see organisations not honouring the rights of either party - mostly, because the Internal Committee members are unaware.

It is important to know that failure to do so can lead to litigations and in the past, it has been seen that the decisions of the Internal Committee members are rendered null and void. In some cases, the employers have been asked to pay penalties for non-compliance. 

Therefore, it is important that during any inquiry, all parties, including the Internal Committee members, the Employer, the Complainant as well as the Respondent are aware of their rights given to them under the POSH Act. 

• Right to Confidentiality: Both the Complainant and the Respondent have the right to confidentiality throughout the investigation process. The identity of the complainant, respondent, witnesses, and any information pertaining to the complaint cannot not be disclosed to anyone not involved in the inquiry process. The confidentiality clause extends even after the inquiry is over. Disclosing the identity of the complainant, respondent, or details of the complaint can lead to penalties and legal action for violating confidentiality provisions.
• Right to a Fair and Timely Inquiry: Both parties are entitled to a fair, impartial, and timely inquiry by the Internal Committee (IC). The IC is required to complete the inquiry within 90 days from the date of receipt of the complaint. 
• Right to Interim Relief: During the pendency of an inquiry, the complainant has the right to seek interim relief. This may include transferring the complainant or the respondent to another workplace, granting leave to the complainant up to three months, or any other relief to ensure the complainant's safety and well-being.
• Right to Be Informed: Both parties have the right to be informed about the status of the complaint, the findings of the Internal Committee, and the actions taken by the employer based on the IC’s recommendations. Furthermore, the Respondent has the right to get the complete copy of the complaint, as is. 
• Right to Be Heard: The respondent has the right to present their case, submit evidence, and respond to the allegations made against them.
• Right to a Written Report: Both parties have the right to receive a copy of the IC’s final report, which should include a summary of all the meetings, evidence/s that were examined, the findings as well as recommendations. Please note that a copy of the final inquiry report is the right of both the parties and failure to provide can result in legal action. 
• Right to Protection Against Retaliation: During the inquiry, both parties as well as witnesses are protected against any form of retaliation or victimisation as a result of filing the complaint. The employer is obligated to ensure that no adverse action is taken against them during the course of inquiry. The organisation needs to take disciplinary action if they find any incidents of retaliation, threat or coercion against any party.
• Right to Legal Recourse: Both parties have the right to pursue legal recourse through appropriate judicial forums if they are dissatisfied with the outcome of the Internal Committee’s inquiry or if the employer fails to act on the IC’s recommendations.

Failure of an organisation to honour and protect the rights of the complainant and the respondent under the POSH Act can lead to serious consequences. Aggrieved parties may pursue legal action against the organisation for failing to protect their rights, leading to potential civil liabilities and compensation claims. They can also file complaints with the appropriate authorities, such as the District Officer or Labour Commissioner, triggering investigations and legal proceedings against the organisation.