Understanding conciliation under the PoSH Act
In certain cases of sexual harassment reported to the Internal Committee (IC) under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act), the complainant may wish to resolve the matter informally rather than through a formal inquiry.
The reasons can vary. Sometimes the complainant might say, “I am uncomfortable with the behaviour, but I don’t want this case to impact the respondent’s career. I prefer an informal redressal where the IC can issue a warning.” In other instances, the complainant may simply want a quicker resolution, especially if the incident was an isolated one and the respondent’s behaviour was not malicious but insensitive.
It’s important to note that this approach does not make the complaint less serious. Rather, it reflects the complainant’s choice to seek closure through dialogue rather than confrontation. This is where conciliation comes into the picture.
What the law says: section 10 of the PoSH act
Section 10 of the PoSH Act outlines the process of conciliation between the complainant and the respondent. Conciliation refers to a mutual settlement facilitated by the Internal Committee. It allows the parties to reach an understanding without undergoing a full inquiry process.
However, the law sets strict boundaries for conciliation to prevent misuse or coercion. The Internal Committee (IC) can only begin conciliation if the complainant explicitly requests it. Under no circumstances can the IC, employer, or any other authority suggest or initiate conciliation on their own.
This safeguard ensures that conciliation is voluntary and not a result of pressure from colleagues, management, or HR to “settle things quietly.”
Key features of conciliation under the PoSH act
- It must be initiated only by the complainant- The complainant has the absolute right to decide whether she wants conciliation. The IC’s role begins only after receiving a formal request.
- Monetary settlement is strictly prohibited- Section 10(1) of the Act clearly states that no monetary compensation can form part of the conciliation settlement. This prevents the process from becoming transactional or exploitative.
- It is an informal, non-judicial process – Conciliation is not an inquiry or investigation. The IC does not determine guilt or innocence. Instead, it acts as a facilitator of dialogue, helping both parties arrive at a resolution that feels fair to the complainant.
- The outcome is documented in a conciliation settlement agreement – The terms of understanding reached through conciliation must be recorded in writing and signed by both parties. This document becomes legally binding once submitted to the employer.
- The IC cannot issue any separate orders or directions – Since conciliation is a voluntary, mutual process, the IC does not “decide” the matter. Its role is purely administrative — to document, report, and ensure that the terms of settlement are honoured.
The role of the internal committee in conciliation
During conciliation, the Internal Committee serves as a neutral third party. It must balance sensitivity with legal compliance, ensuring that the complainant’s autonomy is preserved throughout.
Here are some best practices the IC should follow during conciliation:
- Maintain neutrality and avoid persuasion. The IC should neither encourage nor discourage conciliation. Its duty is to respect the complainant’s decision, not to influence it. Any sign of persuasion, even subtle, could invalidate the fairness of the process.
- Document every stage of the process. The IC must record all meetings, discussions, and communications related to conciliation. This documentation acts as a safeguard in case of future disputes or allegations of bias.
- Ensure informed consent. Before initiating conciliation, the IC should explain to the complainant that the process is voluntary and that she can withdraw or request a formal inquiry at any point if she feels uncomfortable.
- Keep clear records of the terms. Once both parties agree on specific terms — such as an apology, counselling, or a written assurance of changed behaviour, the IC should record them in a written agreement signed by both parties.
- Submit the settlement to the employer. The IC must forward the details of the settlement to the employer for implementation. The employer is legally obligated to enforce the conditions agreed upon, such as transferring the respondent, adjusting reporting structures, or providing counselling sessions.
- Monitor compliance discreetly. After conciliation, the IC should follow up discreetly to ensure that the terms of the settlement are being respected and that the complainant faces no retaliation.
Confidentiality and sensitivity
Like all PoSH proceedings, conciliation must be conducted in strict confidence. The identity of the complainant, respondent, and any witnesses cannot be disclosed. The settlement details should remain within the IC and the employer.
It is also critical that conciliation not be used as a tool to suppress complaints or protect senior employees. Courts have clarified that the purpose of conciliation is to empower the complainant, not to protect organisational image.
When conciliation fails
If conciliation does not lead to a settlement, for instance, if the respondent refuses to cooperate or the complainant later withdraws consent, the IC must proceed to initiate a formal inquiry under Section 11 of the PoSH Act.
In such cases, the earlier conciliation proceedings have no bearing on the inquiry outcome. The IC must start afresh, collect evidence, and ensure a fair and unbiased hearing for both parties.
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