INDIA Law and Practice Contributed by: Preetha Soman, Madhur Khandelwal, Aishwarya Maria Manjooran and Rebecca Thomas, JSA Advocates & Solicitors
6. Conclusion and Outcome of an HR Internal Investigation 6.1 Deciding to End an HR Internal Investigation Concluding an Investigation In India, there are no specific laws that dictate exactly when an HR investigation must conclude. Generally, an internal investigation should be con - cluded once the employer has gathered sufficient evidence, interviewed relevant parties, and evaluated the findings. Having said that, under the IR Code, in the case of any industrial establishment engaging 300 or more work - ers at any point in the preceding 12 months, where a worker is suspended pending an investigation or inquiry into allegations of misconduct, the process must be completed, whether it involves only an inquiry or an investigation followed by an inquiry, ordinarily within 90 days from the date of suspension. Similarly, under the PoSH Act, the ICC is required to complete its inquiry within 90 days from the date of receipt of the complaint. This timeline is indicative of when an inquiry under the PoSH Act should be con - cluded. 6.2 Procedure for Ending an HR Internal Investigation Communication Procedure Upon Investigation Closure In a fact-finding internal investigation, although there is no specific communication procedure prescribed under law, once the exercise has been concluded, typically, the investigators would submit a detailed report with its findings to the management team. Depending on the facts and circumstances of each case, the employer would determine the stakeholders who will need to be informed of the findings. In some cases, investigations may be conducted without the knowledge of the employee against whom the alle - gations have been levelled and therefore there may not be a need to inform such employee about the outcome. However, if the investigation report forms the basis for a disciplinary inquiry thereafter, the prin -
Although internal regulations are not legally binding the same way that laws are, they are considered bind - ing within the organisation. Any deviations from the same can lead to, inter alia, claims of unfair treatment or procedural lapses, besides legal challenges including cases of wrongful termination, harassment, and so on. Mishandling investigations can also harm an organi - sation’s reputation internally and externally, affecting employee morale and stakeholder trust. Employers often formulate these internal regulations as “guidelines”, allowing sufficient discretion to be exercised based on the specifics of each case. 5.3 Burden and Degree of Proof In an internal investigation which is only a fact-finding exercise, as such, neither party is obligated to prove their innocence, unless the investigation advances to a formal stage, such as a disciplinary inquiry. In a disciplinary inquiry, since the employer initiates the same, typically, the employer bears the burden of proof, needing to substantiate allegations against the delinquent employee. However, the standard of proof is usually “preponderance of evidence”, meaning that the evidence must show that the misconduct is more likely than not to have occurred. In PoSH matters, the burden shifts to the respondent after the complainant establishes a prima facie case, requiring the respondent to then provide evidence to refute the claims. Judicial precedents have differentiated between crimi - nal proceedings and disciplinary inquiries in terms of the standard of proof. While criminal proceedings require proof “beyond a reasonable doubt” to estab - lish guilt, disciplinary matters only require a lower standard of proof “on the balance of probabilities” or on “preponderance of probability”. This essentially means that the allegation is considered proven if it is more likely than not to have occurred.
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