INDIA Law and Practice Contributed by: Preetha Soman, Madhur Khandelwal, Aishwarya Maria Manjooran and Rebecca Thomas, JSA Advocates & Solicitors
2.2 Communication to Authorities Disclosure Requirements With Regulators Under the PoSH Act, there is a requirement that certain details such as the number of complaints received, complaints disposed of, and cases pending for more than 90 days be included in the annual report submit - ted to the district officer. Likewise, in Karnataka, a notification has been issued that exempts certain classes of establishments, including IT/ITeS establishments, from the applica - bility of the erstwhile Standing Orders Act. One of the conditions for eligibility for this exemption is the requirement to notify the labour authorities about dis - ciplinary actions, including suspension, termination, or demotion. Although the IR Code has replaced the Standing Orders Act, the notifications issued under the erstwhile laws will continue to apply unless and until superseded by subsequent notifications. There are also certain disclosure requirements that apply to listed entities under the regulations formu - lated by the Securities and Exchange Board of India (SEBI) in instances of, inter alia, insider trading, fraud, and similar practices in the securities market. Likewise, there may be situations where the internal investigation discovers the commission of offences that may be mandatorily reportable. Except to the extent set out above, there are no requirements under Indian labour laws that impose any disclosure obligations with respect to the opening or conduct of an HR investigation to any regulators. 2.3 Confidentiality Agreements and NDAs Undoubtedly, the underlying essence of any investi - gation is confidentiality, which must be ensured not just by the investigators, but also the persons who are subjected to investigation. Accordingly, the need and significance of maintaining confidentiality must be instilled in the parties throughout the investigation. It is quite common for the parties involved in an inves - tigation to be asked to sign a Non-Disclosure Agree - ment (NDA) prior to the initiation of an investigation.
NDAs help ensure that the details of the investiga - tion, such as allegations, employee statements and findings, remain confidential and are not disclosed to unauthorised parties. They protect the privacy of individuals involved and maintain the integrity of the investigation. Some laws such as the PoSH Act also place strict confidentiality obligations upon the parties. Otherwise, the requirement to maintain confidential - ity springs from the applicable organisational policies and any contracts executed with the employees, such as the employment contracts or confidentiality and inventions assignment agreements. Irrespective of the above, Indian courts have empha - sised that details such as disciplinary proceedings pertaining to an individual constitute personal infor - mation, which merits privacy. If the parties involved in the investigation fail to uphold confidentiality, especially if they are in breach of an NDA or other binding terms of employment, includ - ing policies adopted by the employer, the employer may take appropriate disciplinary action in accord - ance with its policies, besides pursuing legal action for breach of contract. Such action could involve seeking remedies for any harm caused by the unauthorised disclosure of confidential information. The parties in an investigation may also have the right to claim a breach of their privacy before a court of law, if their personal or sensitive information has been disclosed without consent or in violation of the confi - dentiality agreements in place. 2.4 Preliminary Investigation and Scope- Setting A preliminary fact-finding inquiry can be conducted to gather relevant information and establish the factual context before proceeding with a more formal and comprehensive investigation. In fact, in misconduct cases, prior to initiation of a disciplinary inquiry (mandated under law), it is quite typical for employers to undertake a preliminary inves - tigation or a fact-finding exercise.
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