INDIA Law and Practice Contributed by: Preetha Soman, Madhur Khandelwal, Aishwarya Maria Manjooran and Rebecca Thomas, JSA Advocates & Solicitors
3. Interviews and Fact-Finding 3.1 Interviewees
parte basis, meaning that the investigation can con - tinue without the interviewee’s participation, using the available evidence and testimonies from other parties to draw a conclusion. In fact, the PoSH Act enables the ICC to terminate the inquiry proceedings or to give an ex parte decision, if the complainant or respondent fails, without sufficient cause, to present themselves for three consecutive hearings convened by the Presiding Officer. Howev - er, such termination or ex parte order will have to be passed only after giving notice in writing, 15 days in advance, to the party concerned. If an interviewee refuses to co-operate or participate in the inquiry proceedings, in whole or in part, docu - menting the refusal or selective participation would also be essential. This ensures that the refusal is offi - cially recorded and can be referenced, especially if the disciplinary action is contested at a later stage claiming incomplete or flawed investigation owing to their non-participation. 3.3 Format Mode of Conducting Interviews In India, there are no specific legal requirements dic - tating that interviews must be conducted in-person during internal investigations. Accordingly, interviews can be conducted both virtually and/or in-person. It is left to the discretion of the employer to decide the format, depending on the specific circumstances, resources and preferences. An in-person interview can offer several advantages including: • fostering a strong sense of trust and rapport between the interviewer and the interviewee, making it easier for individuals to share pertinent information; • enabling the interviewer to observe body language, facial expressions and other non-verbal cues that can provide insights into the interviewee’s respons - es; • creating an environment that minimises distrac - tions, facilitating a smoother dialogue and deeper explanation of the issues at hand; and • enhancing the perception of confidentiality.
At the beginning of the investigation, both the com - plainant and the respondent are interviewed to gather their respective accounts of the situation. Individuals who may have any connection to the mat - ter are also interviewed as part of the fact-finding process. This may include those who are named as witnesses by the parties as well as those who may have witnessed the alleged incident/event, and those who could be privy to relevant information, whether through direct observation, involvement, or proximity to the incident. There are no strict minimum or maximum guidelines regarding the number of witnesses that can be inter - viewed during an investigation. The discretion to determine the number of witnesses to be interviewed lies with the investigative team. However, in situations where there are a large number of potential witnesses, it may be prudent to initially screen the witnesses by asking them to provide writ - ten statements or answers to key questions related to the investigation. This could help the investigating team to efficiently identify the most relevant testimo - nies and avoid unnecessary delays, while ensuring that a thorough and fair investigation is conducted. 3.2 Participation Refusal to Co-Operate Unlike the PoSH Act, which grants the ICC the author - ity of a civil court to summon and compel the attend - ance of parties for an inquiry, such powers are not typically provided in other investigative contexts. Many Indian employers outline the obligation of employees to co-operate in company investigations within their company policies as well as the poten - tial consequences for non-cooperation, which may include disciplinary action. Depending on the situation and company policy, the employer may reiterate the importance of their partici - pation. However, if the interviewee continues to refuse participation, the investigation may proceed on an ex
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