How a POSH complaint and inquiry work in Tamil Nadu

Section 9(1) requires a written complaint to the Internal Committee if one is constituted, or to the Local Committee if it is not. A complaint can also go to the Local Committee where the respondent is the employer. The District Officer constitutes the Local Committee under Section 6(1) for establishments where an Internal Committee has not been constituted because the establishment has fewer than ten workers, or where the complaint is against the employer.

A nodal officer is designated in every block, taluka and tehsil in a rural or tribal area, and in every ward or municipality in an urban area. The nodal officer receives complaints and forwards them to the Local Committee within seven days under Section 6(2). A complainant who is unsure which committee has jurisdiction can ask the District Officer's office or the nodal officer.

A domestic worker's complaint goes to the Local Committee. If a prima facie case exists, the Local Committee may forward the complaint to the police within seven days under Section 11(1). The committee process and the police process can run alongside each other.

The complaint must be made within three months from the date of the incident, or from the date of the last incident in a series, under Section 9(1). The committee may extend the period by up to three months for reasons recorded in writing if it is satisfied that circumstances prevented the woman from filing within the original period.

The complaint should be in writing. Where the woman cannot make it in writing, the Presiding Officer or a member of the Internal Committee, or the Chairperson or a member of the Local Committee, must give all reasonable assistance to reduce it to writing.

Where the aggrieved woman cannot complain because of physical or mental incapacity, death or otherwise, her legal heir or such other person as may be prescribed may complain under Section 9(2). The committee should record the basis on which the person is acting.

The Act does not prescribe a detailed form for the complaint. A useful complaint identifies the respondent, the workplace, the dates and places of each incident, the conduct complained of, the persons present, and the documents or messages that support the account. It should also state the relief sought, such as interim transfer, leave, or a direction for action.

The account should distinguish between what the complainant saw or heard and what she was told by others. Messages, emails, call records, photographs and medical records should be preserved in their original form. A chronology helps the committee and the respondent prepare.

A complaint should not be drafted as a legal argument. The committee decides whether the conduct falls within Section 2(n) and Section 3(2). The complainant's task is to give a clear and complete factual account. If the complainant is represented, the representative should ensure that the complaint remains her account.

Section 10 allows the committee, before starting an inquiry, to settle the matter through conciliation at the request of the aggrieved woman. Conciliation cannot be imposed on her, and no monetary settlement can be made a basis of conciliation.

If a settlement is reached, the committee records it and forwards it to the employer or the District Officer for action as recommended. Copies go to the woman and the respondent. No further inquiry is conducted under Section 10(4).

If the respondent does not comply with a term of the settlement, the committee proceeds with the inquiry, or forwards the complaint to the police in a domestic worker case, under the proviso to Section 11(1). A settlement that is not implemented therefore does not end the complaint.

During the inquiry, the committee may recommend interim relief on a written request from the aggrieved woman under Section 12(1): transfer of the woman or the respondent to another workplace, leave for the woman of up to three months, or such other relief as may be prescribed. The leave is in addition to the leave she is otherwise entitled to under Section 12(2).

The employer must implement the recommendation and send a report of implementation to the committee under Section 12(3). A recommendation that is not implemented leaves the woman exposed during the inquiry and weakens the employer's position under Section 26.

Section 16 requires confidentiality throughout. The contents of the complaint, the identity and addresses of the woman, respondent and witnesses, the conciliation and inquiry proceedings, the recommendations and the action taken are not to be published or made known to the public, press or media.

Section 11(1) requires the committee to inquire into the complaint in accordance with the service rules applicable to the respondent, or in the prescribed manner where no such rules exist. Where both parties are employees, they must be given an opportunity of being heard, and a copy of the findings must be made available to both so that they can make a representation before the committee.

The committee has the powers of a civil court for summoning and examining witnesses on oath, requiring the discovery and production of documents, and any other prescribed matter under Section 11(3). The inquiry must be completed within ninety days under Section 11(4).

The committee is an internal body, and its inquiry must still meet the standards of natural justice. Aureliano Fernandes v. State of Goa concerned an inquiry held under the Vishaka Guidelines and held that the employee must get a reasonable opportunity to vindicate their position. The Court examined whether the inquiry followed the service rules as far as practicable, and it found that eighteen meetings in thirty-nine days, with six depositions handed over and forty-eight hours to reply, had compromised due process.

In Medha Kotwal Lele v. Union of India, the Supreme Court directed that the complaints committee be treated as an inquiry authority under the service rules and its report as an inquiry report. That direction connects the committee's findings to the employer's disciplinary process.

The committee must provide its report to the employer, or the District Officer, within ten days of completing the inquiry, and make it available to the parties under Section 13(1). If the allegation is not proved, the committee recommends that no action is required under Section 13(2).

If the allegation is proved, the committee recommends action for sexual harassment as misconduct under the service rules, or in the prescribed manner where there are no service rules. It may also recommend deduction from the respondent's salary or wages of a sum to be paid to the woman or her legal heirs, determined under Section 15. If deduction is not possible because the respondent is absent or has left employment, the committee may direct payment, and if the sum is not paid, forward the order for recovery as an arrear of land revenue to the District Officer.

Section 15 lists the factors for compensation: mental trauma, pain, suffering and emotional distress; loss of career opportunity; medical expenses for physical or psychiatric treatment; the income and financial status of the respondent; and the feasibility of payment in a lump sum or in instalments. The employer or District Officer must act on the recommendation within sixty days under Section 13(4).

Section 14 deals with a false or malicious complaint and false evidence. A mere inability to substantiate a complaint or provide adequate proof does not attract action, and malicious intent must be established after an inquiry before any action is recommended. Section 18 allows an appeal against the recommendations, or against non-implementation, within ninety days.