The Binding Nature Of The Internal Committee's Recommendations

The PoSH Gap Series – Strengthening Workplace Investigations

This article is the first in a series of articles exploring the critical gaps in investigations under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("PoSH Act"). Despite being in force for more than a decade, the PoSH Act continues to suffer from ambiguities that create uncertainties for internal committees ("IC") and the employers who handle complaints of sexual harassment. Through this series, we aim to analyse both legal grey zones and practical pitfalls, offering guidance for organisations to navigate such complexities.

What happens after the IC submits its report?

Imagine this: A complaint is filed with the IC and the IC spends months investigating the complaint, conducting meetings, providing a fair opportunity to both parties involved, interviewing witnesses, analysing evidence submitted and preparing a report recommending a termination of the employment of the respondent. What do you do now?

The PoSH Act is straightforward in its guidance; it requires employers to act upon the recommendations made by the IC within 60 days. But here is the catch: what if you, as the employer, think that termination of employment is stringent? Can you exercise your own judgement and deviate from the recommendations of the IC, or are you expected to implement the recommendations exactly as provided by the IC?

This seemingly simple question has divided Indian courts and has created significant uncertainty for IC and employers. While some courts have held that the IC's recommendations are binding, other courts have observed that employers retain discretion and can modify the punishment recommended. For employers, this difference in precedents creates real risks; implement the recommendations of the IC as is and face potential criticism for being too harsh or deviate from the recommendations of the IC and invite legal challenges for non-compliance.

In this article, we examine how different courts have interpreted the binding nature of IC's recommendations and provide practical strategies for employers to navigate this uncertainty.

How have the courts interpreted the PoSH Act?

The Calcutta High Court in Pradip Mandal vs Union of India¹ held that IC's recommendations are binding on employers. The court observed that the employer cannot tinker or deviate from the recommendations provided by the IC. The court highlighted the appeal mechanism against the recommendations of the IC under the PoSH Act and suggested that if the recommendations of the IC could be freely modified by employers, there would be no need for this appeal provision. Similarly, the Madras High Court² observed that the management has no choice but to proceed against the employee, as recommended in the IC report. Later, the Calcutta High Court, in a different matter³ , also took a similar stance and reiterated that the employer is bound by the IC's recommendations.

In a matter that was decided in 2020⁴, the Calcutta High Court held that the recommendations provided by the IC are merely recommendations and would mean that the employer can either accept or reject the said recommendations and record the same in writing. The court added that if the recommendations of the IC were to be interpreted as a binding recommendation, then it would cease to be a recommendation and would be contrary to the legislative intent.

How can Employers Navigate this divide?

While courts are working towards achieving clarity, below are some practical steps to reduce and minimise legal risks:

1. Provide clear guidelines to the IC: Create clear guidelines for the IC on how recommendations are to be determined. Specify factors that need to be considered, such as the gravity of the offence, the respondent's service records, the impact on the workplace, lessons from previous cases, etc. This ensures that there is proportionality in the recommendations made by the IC, eliminating the need for the employer to intervene and tweak the recommendations during implementation.
2. Documents any deviations: If you decide to deviate from the recommendations provided by the IC, document the same in detail, covering the deviation, reasons for such deviation and past precedents in similar cases. Courts are more likely to consider deviations if they are supported by clear documentation.
3. Act with consistency: Whatever approach is taken – binding or discretionary, apply it consistently. Treating similar cases differently invites judicial scrutiny and weakens your position.

Why does this matter?

Until the courts in India provide some clarity on the position to be taken, the uncertainty persists. The safest approach would be to treat the IC's recommendations as presumptively binding unless you have compelling and well-documented reasons to deviate. It is always important to remember that the purpose of the PoSH Act is to protect women from sexual harassment. Accordingly, Courts will scrutinise any employer action that appears to undermine IC findings or minimise serious misconduct.

Footnotes

1 Pradip Mandal v Union of India, WP 2991(W) of 2016.

2 The Management of Christian Medical College and Hospital v S.G. Dhamodharan, W.P. No. 29012 of 2018.

3 Debjani Sengupta v The Institute of Cost Accountants of India & Ors., W.P. No. 4806(W) of 2019.

4 Institute of Hotel Management, Catering Technology and Applied Nutrition and Ors. vs. Suddhasil Dey and Ors., WPCT 137 of 2019 dated 13.03.2020 (Cal. HC)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.