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26/08/2017

GUIDELINES FOR CONDUCTING INQUIRY UNDER

SEXUAL HARASSMENT ACT AT WORKPLACE



Editors Note : Be it clarified at the outset that under section 11 of the Act the Internal Committee is vested with the powers of a Civil Court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely:-



(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents; and

(c) any other matter which may be prescribed.



In view of the above, the inquiry has to be held carefully by complying with the principles of natural justice lest if it may be vitiated and whole exercise is rendered futile.



The Division Bench of the Delhi High Court in Ashok Kumar Singh vs. University of Delhi & Ors., LPA 305/2017 & CM No.15732/2017, after having considered the facts of the case wherein the Appellant (delinquent employee) had challenged the inquiry report of the Internal Complaint Committee (ICC) [now 'Local Complaint Committee' and 'Internal Complaint Committee' to 'Local Committee' and 'Internal Committee' in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 in Gazette of India Extraordinary Part II, Section 1 dated 9.5.2016], mainly on the grounds that the reports only give a prima facie conclusion and not definite conclusion as mandated under the Act as well as the opportunity of cross examination of witnesses of the complainant and to lead defence evidence was denied to him by violating the principles of natural justice, has remanded the case back to the ICC for conducting afresh inquiry from the stage of cross examination of complainant’s witnesses whose examination-in-chief had already been tendered, in the following manner to meet the mandatory requirements of Section 11(3) of the Act as well as to comply with the principles of natural justice :-



i) The ICC shall intimate the appellant and the respondents No.3 to 5 in writing as well as by e-mail of the date and time of its proceedings.



ii) The appellant would be allowed to cross-examine the witnesses of the complainant through a questionnaire which would be submitted to the ICC at the time when the witnesses are produced for their cross-examination.



iii) The witnesses would be called one by one by the ICC to answer the questionnaire which is put to them. Witnesses would answer questionnaire in the presence of the Committee. Every effort shall be made by the ICC to complete the testimony of a single witness the very day on which the recording of the witness cross-examination commences.



iv) So far as witnesses who are common to several complaints are concerned, such common witness shall be cross-examined in one go when the witness appears before the ICC, in respect of all the complaints in which he/she is a witness.



v) Appellant and the complainant would not be present at the time when the cross-examination of the witnesses of the complainant is being recorded.



vii) The ICC shall endeavour to ensure that the witnesses who are being cross-examined, does not confabulate with the witnesses who are yet to be cross-examined.



viii) The ICC shall make every endeavour to supply a copy of the cross-examination of the complainants' witnesses to the appellant on the date on which the cross-examination at the earliest, in any case before cross-examination of the next witness.



ix) After completion of the cross-examination of the complainants' witnesses, the appellant would be permitted to lead defence evidence. The appellant shall submit the examination-in-chief of the defence witnesses to the ICC in writing within one week of completion of the cross-examination of the complainant's witness. Copies of the statements of the appellant's witnesses would immediately be made available to respondents no.3 to 5.



x) The procedure set out above for cross-examination of the witnesses of the complainant would be followed in identical terms so far as cross-examination of the appellant's witnesses by the respondents no.3 to 5.



xi) We need not to emphasise that the proceedings have to be expeditiously concluded. In the event any representation is made by the complainant under section 12 of the enactment for any interim redressal, the same would be expeditiously decided by the ICC, preferably within one week of the representation.



xii) After completion of the cross-examination of the witnesses of the appellant, parties shall be given a personal hearing by the ICC.



xiii) After consideration of recording of the inquiry and the submissions made by the parties, the ICC shall submit separate reports on each complaint along with their recommendations to the Competent Authority which is the Governing Body of the respondent no.2 within 3 days of the conclusion of the submissions.



xiv) For reasons of expediency, it is directed that the above procedure shall be strictly abided by the ICC.



(xvi) We also deem it necessary to direct that in any case any vacancy in Constitution of the ICC occurs, the same shall be filled within one week from the date when it has arisen. It is made clear that in such eventuality, the inquiry shall resume from the stage on which the erstwhile member of the ICC had left the Committee.



(xvii) It is directed that the ICC shall complete the above exercise within a total period of three months from today.

26/08/2017

OBLIGATIONS OF AN EMPLOYER UNDER LABOUR LAWS



Every employer employing 10 or more employees is under an obligation to display at any conspicuous place in the workplace, the penal consequences of sexual harassments and the order constituting, the Internal Committee under sub-section (1) of section 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redessal) Act, 2013.



For the convenience and at the instance of its subscribers, the Labour Law Reporter has printed the Charts to be displayed by the employers alongwith (Anti) Sexual Harassment Policy alongwith particulars of Internal Committee as constituted under section 4 of the Act. The exhaustive Charts are fitted with the adhesive tapes to be fixation.



The list of the Charts as available are as follows :



1. Sexual Harassment of Women at Workplace with Anti Sexual Harassment Policy as well as the particulars of Internal Committee

2. Maternity Benefit Act (amended)

3. Payment of Gratuity Act with obligations of employers

4. Contract Labour (R&A) Act.



Failure to exhibit such charts can attract prosecution, fine and not excluding punishment. The inspecting labour authorities take sadistic pleasure in harassing the employer that too the CEO or the Managing Director for trivial and unintentional lapses.

20/08/2017

LATEST IN EMPLOYEES' PROVIDENT FUNDS & MP ACT

HIGHLIGHTS OF FULL JUDGMENTS OF THE HIGH COURTS AND SUPREME COURT AS PUBLISHED IN SEPTEMBER 2017 ISSUE OF LABOUR LAW REPORTER

• Provident fund dues to the employees to be treated as top priority.
• EPF Act is not applicable upon an establishment employing less than 20 employees.
• Under section 17-B of the Act, the liability is cast upon transferor and transferee.
• An appeal of under sections 7-A of the E P F Act lies only against a final order.
• An employee will be entitled to the benefits of the Act irrespective of mode or source of payment of wages.
• Once an appeal is decided on merit, it can be reopened only by way of review.
• Tribunal is deemed Civil Court in terms of section 7-J (2) of the Act.
• If an order passed by the judicial authority is not clear, the same is liable to be set aside.
• Liability of transferee for EPF dues of transferor is limited to the value of assets transferred to it.
• Words ‘inherent powers of Court’ and ‘for ends of justice’ are paramount and shall not be limited.
• Remanding an order is proper when lower authority has not considered evidence.
• When there is no express provision empowering the Tribunal, it can exercise inherent powers under section 151 of CPC.
• A settlement u/s 18 of the I.D. Act debars a workman for claiming provident fund.
• Persons engaged through contractor on part time would be entitled to the benefits of the Act.

RATIO OF THE DECISIONS OF THE EMPLOYEES' PROVIDENT FUND TRIBUNALS

• An order, passed by EPF authority without considering the submissions of the employer, is liable to be set aside
Bharat Sanchar Nigam Ltd. vs. APFC, Naroda
• Commission agent, drawing wages within prescribed limits, is employee - entitled for benefits under EPF&MP Act
Sadguru Nagrik Sahakari Bank Maryadit vs. APFC, Bhopal
• Outsourced employees would be employees of principal employer in the absence of documentary proof thereto for applicability of the EPF&MP Act
Sri Partha Sarathi Saha vs. APFC, Agaratala
• Non-reasoned or non-speaking order is liable to be set aside
Ujjwal Enterprises vs. APFC, Delhi(N)

While holding proceedings under section 7A or 14B of the Employees' Provident Funds & MP Act an officer is vested with the power of a court has upheld by the higher court but at the same time such an official has certain obligations in passing reasoned orders within the framework of law and the judicial pronouncements. In this context, it is only Labour Law Reporter which has special section earmarked for provident fund matters. If anyone in the capacity of DECISION MAKER cannot afford to miss to read the Labour Law Reporter lest such orders may not be reversed or quashed. The above contents bear the testimony.

13/08/2017

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13/08/2017

NEW DELHI: From next month, your PF account will be transferred automatically when you change your job, chief provident fund commissioner V P Joy has said.

Joy, who is pushing a slew of initiatives in the Employees' Provident Fund Organisation (EPFO) to make it more worker-friendly, said the premature closure of accounts was one of their main challenges, and they were trying to address it by improving services.

"Whenever there is a change of job, a lot of accounts are closed; then they (the employees) restart their account later on," he added.

"Now we have made Aadhaar compulsory for enrollment. We don't want accounts to be closed. The PF account is the permanent account. The worker can retain the same account for social security," Joy added.

"We are trying to ensure transfer of money if one changes jobs, without any application, in three days. In future, if one has an Aadhaar ID and has verified the ID, then the account will be transferred without any application if the worker goes anywhere in the country. This system will be in place very soon," he added.

The EPFO has also stepped up efforts to expand coverage, and initial results have been positive. "During the campaign from January to June, more than one crore workers were enrolled. Now, we are trying to retain them by improving services," Joy said.

Joy said PF money should be withdrawn only for major purposes like housing, education of children, or serious hospitalisation. "...Only then will people get social security. So, we are now starting a campaign...to educate people that money must be withdrawn only for essential purposes," Joy said