HOW TO BE LEGALLY COMPLAINT OF THE ACT?

BY

Dr. ADITI KAUSHAL ( Ph.D in LAW)

ADVOCATE & AUDIT CONSULTANT

KLA MANAGEMENT CONSULTANTS PVT. LTD

MIND-SET: TO BE COMPLIANT

BY WHOM

WHEN

WHAT / FOR WHAT

COMPLIANCE IN REFERENCE TO

• Prevention

• Prohibition

• Redressal

In regard to harassment which is sexual

harassment and takes place at

workplace

FAQ

• DIFFERENCE BETWEEN SEXUAL HARASSMENT AND SEX BASED DISCRIMINATION

• ROLE OF LEGAL MANAGER/ HR MANAGER/ADMIN MANAGER

• PERSONNEL INTEREST AND INTEREST OF MEMBERS OF COMMITTEE

• AGGRIEVED NOT SATIFIED WITH THE CONSTITUTION OF COMMITTEE

• LEGALITY OF PROCEEDING

• POSITION IN CASE OF NO FEMALE EMPLOYEES

• FINALITY OF REPORT

STATUTORY PROCEDURAL OR DEEMED

COMPLIANCES

6

COMPLIANCES

• RETURNS

• DISPLAYS

• SUBMISSION OF REPORT WITHIN 10 DAYS AFTER COMPLETION OF ENQUIRY

• INTIMATIONS AS TO ACTIONS TAKEN BY THE MANAGEMENT

• & MANY MORE

STATUTORY

• WORKSHOP

• AWARNESS OF MEMBERS ICC

• INVESTIGATION BY ICC

• ACTIONS IN REGARD TO SAFETY BE TAKEN BY ICC

• & MANY MORE

PROCEDURAL

COMPLIANCE BY WHOM

COMPLIANCS BY WHOM

EMPLOYER

AGGRIEVED EMPLOYEE

DEEMED PERPETRATOR

ICC COMMITTEE

COMMITTEE MEMBER

HR MANAGER

Co

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Constitution of Committee

Draft policy /charter/ resolution

Display & Declare names and contact details of all members of the ICC.

Treat sexual harassment a wrong in service rule

Organise workshops for employees

Re-sensitization of the members of committee on regular basis

Create Forum for dialogue & discussion

Provide Support & Assistance in case of requirements to ICC

Take Action within 60 days of submission of report

Intimate District Officer about the action Taken

Submission of Annual Report

COMPLIANCE BY ICCConduct Awareness session

Create mediums of dialogues & discussion

To decide whether the complaint is Sexual Harassment or Sex based Discrimination?

Conduct Enquiry within 90 days

Facilitate the AggrievedRecord statements of the parties and get

each page signed of the proceeding

Submission of Report within 10 days of completion of enquiry

Equal Opportunity to all the parties to the complaint

Order Transfer or Suspend perpetrator or the Aggrieved

Submission of Annual report to the Government Sec 21

Report to be provided to the parties if asked for by parties

COMPLIANCE BY BOARD OF DIRECTORS: UNDER COMPANIES ACT

• Submission of “Responsibility Statement” as part of the Board’s

Report (on an annual basis): Under Section 134(5)(f)

• Declaration by Directors: division of proper systems to ensure

compliance: Provision of adequate and operating effectively

• Directors to declare company is compliant with the Act.

PENALTY UNDER COMPANIES ACT

• Fine which shall not be less than 50,000/- TO 25 Lakhs

• Defaulter punishable with imprisonment for a term which

may extend to 3 years

• or with both

COMPLIANCE BY PRESIDING OFFICER & COMMITTEE MEMBERS

• To conduct meetings on regular basis

• Conduct awareness sessions

• Maintain confidentiality

• Provide evidences available with them in regard to floor

• External Members to look into matter of biasness

COMPLIANCE BY AGGRIEVED

• START LEARNING TO STATE A “NO”

• COMPLAINT IN WRITING,

• WITHIN 3MONTHS OF INCIDENT : THEREAFTER DISCRETION WITH ICC

• INFORM IN CASE OF INSECURITY TO ICC

• IF NOT CONVIENIENT TO GIVE STATEMENT IN FRONT OF MALE ICC MEMBERS: USE OF HER RIGHT

• ALL SPECIFIC INFORMATION TO THE ICC

• SUBMIT THE LIST OF WITNESSES

DEEMED PERPETRATORS

• To be present before ICC on Issuance of summon

• To reply within 14 days of received complaint

• Submission of evidences and list of witnesses if any

• To abide by the orders of ICC

COMPLIANCE BY HR-MANAGER

• Role of HR-Manager: Limited

• Just a Co-Ordinator: Provide assistance

• Not compulsory to be part of member of committee

• If received complaint :forward to ICC presiding officer or committee members

• Assistance in attendance of parties

• Assistance in arrangement of conducting proceeding

• Maintain confidentiality

• Avail documents in pretest to complaint

IMPACT FOR NON-COMPLIANCES

• VIOLATIONS RELATED TO• CONSTITUTION OF ICC

• ENQUIRY REPORT FAILURE TO ACT; FALSE COMPLAINT FAILURE TO ACT & FAILURE TO SUBMIT ANNUAL RETURN WITH DATA

• CONTRAVENE ANY OTHER PROVISION OF THE ACT

• FIRST FINE Rs. 50,000/-

• SECOND FINE Rs.1,00,000/-

• THIRD FINE IMPRISONMENT MAX TO 3YR OR FINE

• CANCELLATION OF LICENSE

IMPACT FOR REPEATED NON-COMPLIANCES

• REPEATED OFFENCE• TWICE THE PENALITY PREVIOUSLY IMPOSED

• HIGHER PUNISHMENT PRESRCIBED UNDER OTHER LAW THE SAID PUNISHMENT

• CANCELLATION OF LICENSES NON-RENEWABLE OF APPROVALSRESRICT TO CARRY ON THE BUSINESS

ICC PROCEEDINGS TO BE CONDUCTED UNDER PREVIEW LAWS

• Role & Types of Evidences• Documentary evidence: may be pictures

documents, electronic records

• Corroborative Evidence or circumstantial

• Primary;Secondary,Hearsey; Real

• Judicial; Non judicial evidence

• Direct or Indirect Evidence

• Burden of Proof• Burden of Proving an issue.

• Burden of Proving a particular fact