INDIA Law and Practice Contributed by: Preetha Soman, Madhur Khandelwal, Aishwarya Maria Manjooran and Rebecca Thomas, JSA Advocates & Solicitors
ciples of natural justice would require that the find - ings of the investigation be shared with the concerned employee along with the charge-sheet or during the inquiry process. Once such determination is made, a confidential communication is sent to the relevant stakeholders, summarising the key findings, without disclosing any sensitive information. However, in a disciplinary inquiry as well as an inquiry under the PoSH Act, a copy of the inquiry report will need to be shared with the complainant and the respondent upon conclusion of the inquiry. In fact, under the PoSH Act, there is a provision which requires the findings to be shared with the parties (prior to issuance of the ICC report), enabling them to make any representations on the same, if required. 6.3 Conclusion While a written investigation/inquiry report is manda - tory in both disciplinary and PoSH matters, in the case of other HR investigations, as a matter of good corpo - rate governance, the conclusion of the investigation is documented in the form of a written report. This report serves as a formal record of the investigation’s findings. 6.4 Reports Format of the Investigation Report While there is no prescribed format of an investigation report under law, an investigation report should ideally include the following: • title of the report, including the date and name of the investigators; • an executive summary; • an introduction comprising the background; • the methodology followed by the investigators – ie, the description of the investigative process, includ - ing interviews conducted and evidence gathered; • findings – ie, the presentation of facts uncovered during the investigation organised by themes or allegations; • an analysis, which is essentially an interpretation of the findings in light of the relevant laws and poli - cies; and
• the conclusion section, with the summary of the overall findings and whether or not the allegations have been substantiated. The report can also include appendices such as sup - porting documents, interview transcripts and meeting minutes. Insofar as PoSH matters are concerned, the ICC is additionally expected to provide recommendations to the employer on the disciplinary actions that need to be taken based on the employer’s policies. 6.5 Information Refer to 6.2 Procedure for Ending an HR Internal Investigation . 6.6 Communications to Authorities In certain situations, depending on the nature of the irregularity or offence, the position held by the con - cerned persons, and the potential exposure that the conduct has had upon the company and/or its per - sonnel, the conclusion of an internal investigation may have to be communicated/disclosed to exter - nal authorities, including the police; for example, in cases of serious fraud, corruption or criminal acts. The outcome of the investigation would essentially be determinative of whether or not the offence has to be reported, and if so, who would be the appropriate authority. 6.7 Other Communications There is no requirement to communicate the conclu - sion of the internal investigation and/or its findings to witnesses or other team members. 6.8 Disciplinary Measures If the charges of misconduct are substantiated in a disciplinary inquiry, judicial precedents require that any resulting disciplinary action should be proportion - ate to the severity of the offence. Factors that are typically considered when deciding on the quantum of punishment include the gravity of the offence, the frequency of the acts or omissions, and the degree to which they damaged the company’s reputation or disrupted workplace harmony or caused any sort of harm to other personnel.
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