INDIA Law and Practice Contributed by: Preetha Soman, Madhur Khandelwal, Aishwarya Maria Manjooran and Rebecca Thomas, JSA Advocates & Solicitors
disagreement over office seating arrangements, or a trivial complaint about a colleague’s lunch habits. Given that the objective of an internal investigation is to “intervene at the first sight” in order to eliminate any possible threats such as reputational damage, employee morale issues or legal repercussions, it is advisable to initiate an internal investigation whenever something seems amiss. 2. Initial Steps 2.1 Communication to the Reporter and the Respondent Complainant’s/Respondent’s Right to Know In cases where an inquiry/investigation needs to be conducted under applicable laws or company poli - cies, the respective laws and/or policies would typi - cally specify the extent to which the complainant/ reporter would need to be kept informed or involved throughout the investigation process. In other cases, although not legally mandated, it is considered a good practice for employers to inform the reporter/complainant about the initiation of an investigation. Doing so helps maintain transparency, fosters trust, and demonstrates a commitment to fair - ness. Having said that, employers will need to balance the complainant’s right to know with the need for confi - dentiality for all parties involved in the investigation. The extent of information to be shared with the report - er/complainant will also depend on each organisa - tion’s internal policies and the nature of the case. While there is no obligation to disclose every detail of the investigation, it is advisable to keep the reporter/ complainant informed about any key aspects, such as the expected timelines for the investigation and any significant developments. This ensures transparency and compliance with the principles of natural justice. In cases where an inquiry/investigation needs to be conducted under applicable laws or company poli - cies, the respective laws and/or policies would typi -
cally specify the extent to which the respondent would need to be kept informed. For example, under the PoSH Act, upon receipt of a complaint from the aggrieved woman, the ICC is required to send a copy of the complaint to the respondent within a period of seven working days, allowing the respondent to file their reply to the complaint within a period of ten work - ing days from the date of receipt of the complaint. Likewise, in misconduct cases, the respondent needs to be informed of the charges levelled against the respondent by issuance of a charge-sheet. This ensures that the respondent has the opportunity to rebut or defend the charges, irrespective of whether or not such an opportunity was provided to the respond - ent during the preliminary investigation process. The principles of natural justice require that the respondent be kept informed of the disciplinary hear - ings and a copy of the inquiry report be shared with the respondent. In all other cases of HR investigations, the extent of information to be shared with the respondent will depend on each organisation’s internal policies and the nature of the case. For sensitive issues like finan - cial impropriety, preliminary investigations are typically carried out discreetly to prevent potential tampering of evidence or influencing of witnesses. Once the pre - liminary findings are made, the respondent must be given an opportunity to be heard before any disci - plinary action is imposed. If the investigation report forms the basis for the charges set out in the charge- sheet, the principles of natural justice would demand that the findings of the investigation along with sup - porting material be shared with the respondent when the charge-sheet is issued. During the pendency of the investigation, if any inter - im measure is taken against the respondent, such as a transfer or relocation to a different office prem - ise, suspension, or a work-from-home arrangement, the respondent must be promptly informed of such actions and the implication that it will have on their duties, responsibilities, work environment, compen - sation, or any other relevant aspects of their employ - ment.
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