It is the mandated duty of every employer to provide a safe space free of any sexual harassment in the workplace. While the employer may strives to provide the safest of workplaces, but one has to acknowledge that an employer cannot be physically present at every instance. The first step to ease this burden in case an instance arises is filing a complaint under the POSH act. The Act provides a detailed list as to the parties who have a right to file the said complaint arising or falling under the purview of the POSH Act.
Who can file a POSH complaint?
- A posh complaint can be filed by an “aggrieved woman” as defined under section 2(a) of the Act.
- The complaint of the incident can be filed by someone other than the aggrieved woman:
a) Where the aggrieved woman is unable to make the complaint on account of her physical incapacity or mental incapacity a complaint may be filed by:
i. Her relative or friend
ii. Her co-worker
iii. An officer of the National Commission for Women or State Women’s Commission
iv. Any person who has knowledge of the incident, with the written consent of the aggrieved woman
v. A special educator
vi. A qualified psychiatrist or psychologist
vii. The guardian or authority under whose care she is receiving treatment or care
viii. Any person who has knowledge of the incident jointly with her relative or friend or a special educator or qualified psychiatrist or psychologist, or guardian or authority under whose care she is receiving treatment or care.
b) Where the aggrieved woman for any other reason is unable to make a complaint, a complaint may be filed by any person who has knowledge of the incident, with her written consent.
c)Where the aggrieved woman is dead, a complaint may be filed by any person who has knowledge of the incident, with the written consent of her legal heir
After determining the person who can file the complaint the second most important step is understanding the procedure to be followed and the passage of the complaint under the Act.
Mechanism for handling of POSH complaints:
- Every establishment should have a dedicated person from the Internal Complaints Committee with whom an aggrieved woman can file a complaint.
- The period of filing the complaint is 3 months from the date of last incident which can be extended to another 3 months if the Internal Complaints Committee has reason to believe that certain circumstances prevented the complainant to file the complaint within the limitation period.
- In, Shri Debdulal Maity vs National Insurance Co. Ltd. & Ors, WP No.728 of 2014, The Calcutta High Court specified that “the Act does not require the IC to mechanically issue a notice upon receipt of the complaint. The IC should apply its mind to determine whether the complaint relates to sexual harassment and whether the incident has happened at the workplace.” The court further stated that it is only on the basis of this finding, IC may attempt conciliation under section 10 or begin an inquiry under section 11.
- If it is a misunderstanding then at the request of the aggrieved woman Internal Complaints Committee can go into conciliation as per section 10 of the Act and if a settlement is reached then the Internal Complaints Committee shall record the settlement and send it to the employer to take action as specified in the recommendations.
- Then if the aggrieved woman doesn’t want to go into conciliation, then within 10 days the accused is required to file a reply and provide the documents and evidences that support his claim.
- Then Internal Complaints Committee will initiate the scrutiny of the documents provided by both parties and cross-examine the parties and witnesses regarding the incident or incidents in question.
- The inquiry of the complaint should end within 3 months (90 Days).
- A report with the findings and recommendations shall be sent to the employer within 10 days after the end of the inquiry.
- After receiving the Internal Complaints Committee report the employer shall take action within 60 days of receiving such report.
The complaint mechanism should be well explained to the employees during the training and workshops. Each and every employee should be well versed with the POSH policy of their organization in order to have a good and effective complaint mechanism. It is the responsibility of the employer to provide these training and workshops periodically to ensure that the employees are aware and well-sensitized about such mechanisms in place.