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Conciliation Under The Sexual Harassment Of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013

As per "The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, any aggrieved women may make a complaint in writing of sexual harassment to the Internal Committee, within the period of three months from the date of incidence. The Internal Committee shall make an inquiry into the complaint, and for the purpose of making an inquiry the Internal Committee shall be having same powers as vested in civil court under the Code of Civil Procedure, 1908.

The Internal Committee may summon and enforce the attendance of any person and examine him under oath. An inquiry shall be completed within the period of ninety days. On completion of an inquiry the Internal Committee shall report its findings to the employer within the period of Ten days.

Conciliation Under POSH Act, 2013

As per section 10 of the Act, the aggrieved women may make a request to the Internal Committee as she is ready to settle the matter with the respondent amicably. Such a request shall be made before initiating an inquiry proceeding. According to her request for conciliation, the Internal Committee shall call both the parties and shall try to settle the matter by mutual consent, without any monetary settlement. If the matter is settled in the Conciliation process, no further inquiry shall be conducted. The Internal Committee shall inform the employer and submit a copy of the settlement.

This conciliation process facilitates settling the matter without any hassles, avoids further investing time in conducting an inquiry proceeding, recording the statements, and verifying the documentary evidence submitted by both the parties in support of their own case. As the settlement in the conciliation process is done with the mutually agreed terms and conditions it improves the interpersonal relationships and overall culture of the workplace.

The members of the Internal Committee shall be trained in handling such a situation. Concerted effort shall be made to settle the matter amicably and achieve success in the process of conciliation. As this is as per the choice of women employee, there should not be any pressure on her for any settlement.

It is in the interest of individuals as well as from an organization that there be a fearless environment in the organization where all employees shall work with confidence. The entire team shall put their efforts into achieving the organization's Vision and Mission and shall be able to work with optimum potential.

Conciliation under Industrial Disputes Act, 1947

We can find a similar provision under the Industrial Dispute Act. Under Section 4 of the Act, the Appropriate Government (Central or State) shall make an appointment for a conciliation officer, for the purpose of mediating and promoting the settlement of industrial dispute.

Earlier the Indian Trade Dispute Act, 1929 was in force. There was a machinery for settlement of dispute under the Act, it was not the "Conciliation officer" but it was the "Board of conciliation". It was found inadequate at that time for settlement of dispute hence the Act was amended and inserted section 18-A whereby the Central and Provincial Governments were authorized to appoint "Conciliation Officers". The same provision was taken while enacting the Industrial Disputes Act, 1947.

This provision was helpful in making mediation in settling the industrial dispute, this process wherein a third party attempts to achieve settlement of dispute.

The conciliation officer has wide powers while handling the process. The conciliation process becomes mandatory if any organization is under Public Utility Services. If the strike and/or lockout notice has been given by either party in PUS the conciliation officer has to intervene immediately. The conciliation process can be started where the actual dispute has yet to be started as there is no notice by either party, but if conciliation officer has any apprehension of arising industrial dispute is sufficient for him to initiate the conciliation process.

The Conciliation officer can enforce attendance of parties, and he has vested similar rights and powers as it is vested in the Civil Court under Code of Civil Procedure. If the conciliation officer succeeded in making settlement during the conciliation process, the conciliation officer shall communicate the same to the appropriate government and shall provide a copy of settlement.

But many times, the conciliation process fails as the parties are not willing to settle the matter amicably. It is treated as a failure of conciliation proceedings; it is the duty of the conciliation officer to communicate by failure report to the appropriate government. Now the appropriate government may refer this dispute for adjudication process to the Industrial court or Tribunal.

The Conciliation officer is not competent to hear and decide any of the points raised by either party but all he can do is try to persuade the parties to come to a fair and amicable settlement. His duties are purely administrative and not judicial or quasi-judicial.

There is special reason for making a settlement under conciliation proceedings as the settlement is applicable to all employees otherwise it is a bi-lateral agreement and applicable to those who have agreed and signed.

Conciliation proceedings under The Arbitration and Conciliation Act, 1996

After economic reforms of 1991, there was lot of efforts taken to attract the foreign investors and to provide comfortable environment at par with other countries for doing business in India, The Arbitration and Conciliation Act was brought into force and repealed earlier law of 1940. Under this law the parties of dispute can initiate the conciliation process if they have agreed for conciliation.

Otherwise, one party can send invitation to other party for conciliation, and if other party accepts the invitation within thirty days, the proceeding may be commenced, if the other party fails to accept the invitation, it is treated as the invitation rejected. Since the process is not mandatory the agreement between the parties for conducting Conciliation is necessary. In this process the conciliator shall act as an independent person and shall assist the parties for an amicable settlement. The conciliator is not bound by the provisions of the Civil Procedure code or the Evidence Act.

The parties shall not initiate during the conciliation proceedings any arbitral or judicial proceedings in respect to the same dispute. The conciliator cannot act as an Arbitrator, or representative or counsel of either party. The conciliator cannot be brought as witness by either party in any arbitral or judicial proceedings. Any proceedings or views or proposals made during the conciliation proceedings cannot be brought as evidence in other proceedings.

Difference in the conciliation proceedings under three different laws:

Irrespective of the basic aim of conciliation proceedings is to bring amicable settlement between the parties, there are certain differences between the three laws.
  1. Type of dispute:
    Under POSH Act the aggrieved women can file criminal complaint. On the other hand, under the Industrial Disputes Act the basic purpose is to handle labour matters smoothly and maintain industrial peace. And Under the Arbitration and conciliation Act, it is a matter of civil nature, may or may not be contractual.
  2. Appointment:
    Under POSH Act the Internal Committee act as the conciliator and aggrieved women at her mercy can initiate the conciliation proceedings. Under the Industrial Disputes Act the conciliation officer is appointed by the government, he is the officer of the labour department, he is an expert in the field of handling labour matters. Under the Arbitration and conciliation Act, the conciliator is as per the choice of the parties.
  3. Commencement of proceedings:
    Under POSH Act the aggrieved women can make a request to Internal Committee that she is interested to settle the matter with respondent through conciliation. Under the Industrial Disputes Act the conciliation officer appointed by the government may start conciliation proceedings for an existing industrial dispute or he is having any apprehension of any such industrial dispute. And Under the Arbitration and conciliation Act both parties must be agreed on the point that the disputed matter can be settled mutually and through conciliation proceedings.

Optimum care shall be taken while handling matters under the POSH Act

Any complaint by aggrieved women regarding Sexual Harassment is not easy, because she has always apprehension that other employees may come to know about her complaint, for the purpose she is always trying to maintain confidentiality. Also, it's the responsibility of the Internal Committee to maintain confidentiality of any details of the case.

The inquiry is being conducted according to the principles of natural justice hence both the parties shall be given an equal opportunity of being heard. Both parties can submit the documents in support of their case. All stages of an inquiry shall be followed, and fair opportunity shall be given to both the parties.

If the Internal Committee arrives at the conclusion that the allegation against the respondent by the complainant women are malicious or the complainant women has made the complaint knowing it to be false or submitted such document which are forged or misleading document, the Internal Committee can recommend disciplinary action against the woman for such false complaint.

Section 11 of the POSH Act, relating to conciliation plays an important role for amicable settlement between the parties, here both parties along with the Internal Committee discuss for amicable settlement, but only on condition that any monetary settlement is prohibited under this Act.

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