If you are stuck in such a situation, here is what to do.

This query concerns Ms. Priya Sharma, a lawyer who was recently promoted to Deputy Manager at a reputable financial institution, Apex Finance and Trust, in the city of Akaashnagar. Ms. Sharma is also an active member of her organisation’s Internal Complaints Committee (ICC), established under the POSH Act.

Recently, the ICC received a sexual harassment complaint from a female employee, Ms. Sunita, against her team leader, Mr. Rajesh. While the committee is investigating the matter, the company’s management has preemptively decided to remove Mr. Rajesh from his leadership role. They are now pressuring Ms. Sharma to take over his team as part of her new promotion.

This presents a significant dilemma. Through her role in the ICC, Ms. Sharma has become privy to sensitive information about the team’s dynamics. She is aware that the team is highly dysfunctional, with members known for poor work ethic, taking unapproved leaves, and having a substantial backlog of pending tasks, largely because Mr. Rajesh was lenient. Several members of this team have also sided with Ms. Sunita in the ongoing investigation.

The management has given Ms. Sharma an ultimatum: either accept the leadership of this problematic team, along with her existing responsibilities and without any support, or forfeit her hard-earned promotion. Her suggestions to divide the team or provide a co-lead for support have been rejected. This has led her to believe that she is being set up as a scapegoat to manage a difficult situation. The core legal question is whether this constitutes a conflict of interest, as her future role as the team’s manager could compromise her impartiality in the ongoing ICC investigation.

Advice in such cases

• Document everything in writing. Keep a record of all verbal and written communications with management regarding this issue. Send a formal email summarizing any verbal discussions and the ultimatum you have been given.
• Formally raise the issue of ‘Conflict of Interest’ with the management and HR department in writing. Explain that as an ICC member investigating the team, taking over as their manager before the verdict would compromise the principles of natural justice and fairness.
• Review your company’s internal POSH policy and your employment contract. There may be specific clauses regarding the conduct of ICC members and conditions related to promotions.
• Do not resign under pressure. Resigning might be interpreted as voluntary, potentially weakening any future legal claim you might have.

Applicable Sections of Law

This situation is primarily governed by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) and principles of labour law.

• The POSH Act, 2013: This Act mandates the constitution of an Internal Complaints Committee (ICC) to investigate complaints of sexual harassment. A fundamental principle of any quasi-judicial inquiry, including one by the ICC, is impartiality and the absence of bias. Forcing an ICC member to manage the very people involved in an ongoing case creates a direct conflict of interest, which can be legally challenged as it vitiates the fairness of the inquiry.
• Principles of Natural Justice: These principles are a cornerstone of Indian law and apply to administrative and quasi-judicial proceedings. The rule against bias (Nemo judex in causa sua) is directly applicable here. Ms. Sharma’s future working relationship with the team members could influence, or be perceived to influence, her judgment in the investigation.
• Industrial Disputes Act, 1947 & Unfair Labour Practices: Forcing an employee to accept unreasonable working conditions as a prerequisite for a promotion can be construed as an unfair labour practice. Threatening to revoke a promotion for refusing to step into a ethically compromised role is coercive and can be challenged before a labour court or tribunal.

If you are the complainant

If you are in the position of Ms. Sunita, the person who filed the complaint, here are the steps you should take:

• Ensure your complaint is submitted in writing to the ICC as per the company’s policy and the POSH Act.
• Compile all evidence you may have, such as emails, messages, or a list of witnesses.
• Maintain strict confidentiality and avoid discussing the details of the case with colleagues to prevent workplace gossip and potential retaliation.
• If you feel the investigation is being compromised, you have the right to raise your concerns with the ICC or escalate the matter.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

In this context, Ms. Sharma is a victim of the management’s coercive and unfair tactics. If you are in her position, you should:

• Formally object in writing. Send a registered letter or a formal email to the highest level of management and the HR head, clearly stating your position. Detail the conflict of interest and the unreasonable nature of the ultimatum.
• State that you are accepting the promotion but are unable to take charge of the specific team until the ICC inquiry is concluded to maintain the sanctity of the process. This puts the onus back on the management.
• Do not verbally agree to the management’s terms. Insist that all communication on this matter be in writing.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

In a situation like this, the police do not have a primary role unless a criminal offense is involved. The POSH Act provides a civil remedy through the ICC. The police would only intervene if the act of sexual harassment also constitutes a cognizable criminal offense under the Bharatiya Nyaya Sanhita, 2023 (BNS), such as Section 79 (Sexual Harassment), Section 78 (Voyeurism), Section 77 (Stalking), or Section 73 (Assault or use of criminal force to woman with intent to outrage her modesty).

If a police complaint (FIR) is filed, their investigation will run parallel to the ICC proceedings. The police will investigate the criminal aspect of the complaint, while the ICC will investigate the workplace misconduct aspect. The two proceedings are independent of each other.

FAQs people normally have

• Can my employer force me to take a role that conflicts with my ICC duties?
  No. Forcing an ICC member into a role that creates a clear conflict of interest undermines the legal framework of the POSH Act. You can and should formally object to this, as it compromises the fairness and integrity of the investigation.
• Can a promotion be withdrawn if I refuse an unreasonable condition attached to it?
  Withdrawing a promotion because you refused to comply with an unreasonable or unethical directive can be classified as an unfair labour practice. Your rights would depend on the terms of your employment contract and promotion letter. Such actions can be legally challenged.
• What is the difference between an ICC inquiry and a police investigation?
  An ICC inquiry is a departmental, quasi-judicial process focused on workplace discipline. Its recommendations can include warnings, termination of employment, or other service-related penalties. A police investigation under the BNS is a criminal proceeding. If the accused is found guilty by a court, the punishment can include imprisonment and fines.

What evidence is required?

For Ms. Sharma’s situation (challenging management’s decision):

• All written communication: Emails, official memos, and letters regarding the promotion and the conditions attached.
• A copy of the formal objection letter sent to management highlighting the conflict of interest.
• The company’s POSH policy and service rules.
• Witnesses, if any, who were present during verbal discussions.

For the sexual harassment complaint (Ms. Sunita’s case):

• Digital evidence like emails, text messages, or social media chats.
• Statements from any colleagues who witnessed the harassment.
• CCTV footage, if available and relevant.
• A detailed timeline of the incidents of harassment.

How long will the investigation take?

• ICC Inquiry: According to the POSH Act, 2013, the Internal Complaints Committee must complete its inquiry within a period of 90 days from the date the complaint was filed.
• Police Investigation: Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), while there are procedural timelines, police investigations can often take longer depending on the complexity of the case. However, investigations into offenses against women are generally expected to be prioritized and concluded swiftly.

Advocate Sudhir Rao, Supreme Court of India