By Rupin Chopra and Ananyaa Banerjee
The Landmark judgment of the Hon’ble Supreme Court in the case of Vishakha vs The State of Rajasthan1 in 1997 led to the genesis of regulations and guidelines for the protection of women against sexual harassment at Workplace. Prior to these Guidelines, there existed no specific law or guidelines against sexual harassment of women at workplace.
Later the Nirbhaya case of 2012, further led to the necessity for passage of an exclusive law dealing with the law in relation to Prevention of Sexual Harassment at Workplace and subsequently The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 was enacted.
Who is an “aggrieved” under the POSH?
According to the section 2(a) of the Act “aggrieved women” means
- In relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;
- In relation to dwelling place or house, a woman of any age who is employed in such a dwelling place or house;
Who is an “employer” under the POSH?
According to the section 2(g) of the Act “employer” means
- In relation to any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority, as the case may be, may by an order specify in this behalf
Duties of an Employer:
This Act outlines the Duties of the Employer of a Workplace to prevent and protect women against sexual harassment. These duties are:
- Form a prevention of Sexual harassment at workplace policy, and create an Internal Complaints Committee.
- Provide training to the Employees and members of the Internal Complaints Committee regarding the prevention of sexual harassment of women at workplace through workshops from time to time.
- Provide a safe environment ay workplace for employees and the people who come into contact with the employees.
- Display the penal consequences of sexual harassment at workplace in a conspicuous place in the workplace.
- Assist the Internal Complaints Committee in conducting inquiries and providing facilities for the same.
- Provide assistance to the women to file a complaint in relation to the offence under Indian Penal Code or any other law.
- Treat sexual Harassment as a misconduct under the service rules and initiate action for such misconduct.
- Monitor the timely Submission of reports by the Internal Complaints Committee.
What is Internal Complaints Committee (ICC)?
The Internal Complaints Committee or the ICC should consist of the following:
- A presiding officer who shall be a woman employee at a senior level at the workplace.
- At least two members of the Internal Complaints Committee shall be from amongst the employees that have experience in social work or have legal knowledge.
- At least one member from non-governmental organization or association committed to the cause of women or people that are familiar with the issues of sexual harassment.
Power of the Internal Complaints Committee or ICC:
For the purpose of making an inquiry the Internal Complaints Committee shall have the same powers as are vested with the Civil cCurt under the Code of Civil Procedure of 1908 while trying a suit in respect of the following:
- Summoning and enforcing the attendance of any person and examining him on oath.
- Requiring the discovery and production of documents.
- Any other matter which may be prescribed.
Complaint mechanism under POSH
- The complainant has to file a written complaint, with six copies of the same along with the supporting documents and the names and addresses of the witnesses to the Internal Complaints Committee.
- The complaint should be submitted no later than 3 months from the date the sexual harassment took place. Exceptions in delay might be allowed where the Internal Complaints Committee opine that there was sufficient reason for the same.
- The Internal Complaints Committee must provide the respondent with a copy of such complaint within seven days from receipt of the complaint.
- On receiving the complaint, the respondent is mandated to file a reply along with the supporting documents and names and addresses of the witnesses to the Internal Complaints Committee within ten days.
- Then the Internal Complaints Committee shall conduct the inquiry as per section 11 of the act.
- Internal Complaints Committee is also entitled to give ex-parte decision, with notice in writing 15 days in advance, where the complainant or the respondent fail to present their case/appear before the Internal Complaints Committee upon being summoned, without sufficient cause, for three consecutive hearings.
- Such inquiry must be completed within 90 days
- Post the completion of the inquiry, the Internal Complaints Committee will have to submit a report with its conclusions from the inquiry to the employer within 10 days of completion.
- If the Internal Complaints Committee concludes that sexual harassment has taken place then it shall recommend the employer an appropriate action which must be taken within 60 days of receipt of the recommendation.
Punishment under POSH Law:
- Punishment with fine up to 50,000 (fifty thousand) can be done on the employer:
a) If there is no Internal Complaints Committee.
b) If the employer has contravened or attempts to contravene or abets contravention of other provisions of this act or any rules made under the Act.
c) If the employer fails to take action under sections 13, 14 and 22.
- If an employer after having been previously convicted of the same offence punishable under this Act subsequently commits and is convicted of the same offence he shall be liable to:
a) Twice the punishment, which might have been imposed on a first conviction, subject to the punishment being maximum provided for the same offence.
b) Cancellation, of his license or withdrawal, or non-renewal, or approval, or cancellation of the registration, by the government or the local authority required for carrying on his business activity.
- When the Internal Complaints Committee arrives at the conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false it may recommend to the employer appropriate action to be taken according to the service rules as may be applicable to him/her.
The rising incidences of the offence of sexual harassment of women at Workplace necessitated the formulation of a law protecting women against such offences. The duties of the Employer, awareness of the aggrieved and role of the ICC are some of the major factors which ensure protection of women against sexual harassment at Workplace.
1. AIR 1997 SC 3011