POSH Act, 2013: Empowering “the Women”

-written by CS Kamlesh Mishra

Background

Since the landmark judgement of Vishaka v. State of Rajasthan (“Vishaka Judgment-1997”), there was a requirement of a strong Law to curb Sexual Harassment and to provide a safe workplace to women. Females are Sexually harassed at most of the workplaces in different ways and to reduce it, one must understand the law protecting their interest and seeking the effective redressal of complaints.

Sexual Harassment violates a woman’s Fundamental Right to Equality and Right to Life, guaranteed under Articles 14, 15 and 21 of Constitution of India. It doesn’t only put them through physical and emotional suffering but also affects their performance at workplace and thereby their social & economic growth.

After Vishaka judgement, India took the cognizance of discrimination against Women for the first time and place its reliance on the Convention on Elimination of All Forms of Discrimination against Women, which was ratified by India in 1993. Since then continuous efforts were made to put in place a strict and effective law on the prevention, prohibition & redressal of sexual harassment of women at workplace by the Ministry of Women and Child Development, India in 2013.

Important Definition to be covered

“Aggrieved Woman” In relation to a workplace, an aggrieved woman is a woman who is subject to sexual harassment at a workplace. She can be an employee or even a customer who had to face such harassment as defined under clause (a) of Section 3.

“Employee” a person employed on regular or temporary, ad hoc or daily wage basis or on the payroll of company or through contractor, for remuneration or not or working on a voluntary basis. The definition includes a co-worker or a probationer, trainee, apprentice.

“Domestic worker” is a woman who is employed to do the household in a dwelling house directly or indirectly on a temporary basis or full time, the definition does not cover a family member.

“Employer” means a person responsible for the management or controls of the workplace in general including the Board and for government departments, the head of such department can be termed as employer or any other person specified as such.

“Workplace” POSH applies to whole of India in organized as well as unorganized sector. The applicability is very wide, the same has been defined as workplace. Workplace includes but not limited to Government Departments, Establishments or Private and Public sector Enterprises, or service provider carrying Vocational, Educational, Entertainment, Industrial, Financial activities, Hospitals, Educational Institutes, Sports Institutions used for training individuals and also includes to a dwelling place or a house. Workplace also includes a place visited by employee for official purpose including the transportation.

What amounts to Sexual Harassment???

As per POSH Act, Sexual Harassment includes

1. physical contact and advances
2. a demand or request for sexual favours
3. making sexually coloured remarks
4. showing pornography
5. any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

In addition to the above, the existence of following circumstances in relation to any act or behaviour of sexual harassment may amount to sexual harassment:

1. implied or explicit promise of preferential treatment in her employment, [Quid Pro Quo]
2. implied or explicit threat of detrimental treatment in her employment, [Blackmail]
3. implied or explicit threat about her present or future employment status, [to Pressurise]
4. interference with her work or creating an intimidating or offensive or hostile work environment for her [intimidate]
5. humiliating treatment likely to affect her health or safety, [Hostile]

As we understand the wider definition of Sexual Harassment, it is something which is unwelcome by the recipient and unwanted in general. A conduct may be unobjectionable for one person while offensive to another.

Sexual Harassment covers verbal or non-verbal conduct even the written ones. A respondent who is in power may use such power to pressurize the woman for sexual favors in exchange for promotion in the workplace or can threat to the woman to adverse employment action. Also, Sexual harassment includes intimidate, offensive or hostile working environment’. Few of the acts are offensive inherently while few of them need clarification as there is a thine line of difference between harassment and casual discussions as normally happens. The responsibility to prove lies on Internal Committee (ICC) base on the act & circumstances.

Internal Compliant Committee:

POSH envisages the employers to constitute an Internal Compliant committee (ICC) at a workplace where 10 or more employees are employed. If the employer fails to set up such committee, they will be liable to the punishment. The tenure of ICC committee member is 3 years and at least half members shall be women.

Constitution of the IC

Disqualification of ICC Members:

There are many situations when a ICC member shall be disqualified to become a ICC Member.

1. Where the ICC member disseminates the information related to the POSH complaint, or
2. The Member is convicted for an offence or investigation is pending
3. The member has been found guilty in any disciplinary proceedings or any proceeding is pending.
4. has so abused his position in such manner as his continuance will be prejudicial to the public interest.

Punishment for non-constitution of internal Committee

If the employer fails to constitute the committee, it shall be liable to a fine of Rs. 50,000 and upon the repetition, the penalty shall be doubled and even the license for carrying out the business of employer shall also be cancelled or revoked.

Local Committee

Government is required to constitute a Local committee at District Level to investigate and redress the complaints of sexual harassment of unorganized sector or where the IC is not required to be constituted or where the complaint is against the employer itself.

Constitution of Local Committee

• Atleast one of the members should have a background in law
• Atleast one of the members should be a woman belonging to the Scheduled Castes or Scheduled Tribes.

Complaint of sexual harassment-

A complain of Sexual Harassment can be made in writing within 3 months of such incident by the aggrieved women and if the aggrieved woman is incapable of making the complaint, her legal heir or friends, relatives, co-workers, psychologist & psychiatrists, etc. Where the woman is dead, a complaint can be filed by anyone aware of the incident with the permission of legal heir. If there are series of incident, the complaint must be filed within 3 months from the last day of such incident. An extension of another 3 months can be provided by the committee if proper reasons stated for non-reporting of such incident in due course.

The complaint must be made in 6 copies to the committee. It should include the supporting documents and the names and addresses of the respondents & witnesses along with time and date of incident. PSOH Act does not prescribe any specified format therefore it must be clear and in simple language to ease the enquiry process.

Conciliation between Aggrieved woman and respondent

Upon a complaint made by aggrieved woman and before starting the enquiry, the committee shall take necessary steps to settle the matter amicably at the request of aggrieved woman through conciliation. If the parties arrive to a settlement, the committee shall record the settlement and provide the copies to both the parties. However, money should not be a basis of such conciliation.

Enquiry by Committee

Upon receipt of the complaint, the committee send the copy of respondent within 7 days to which the respondent is required to reply in next 10 days with all necessary information. The enquiry shall be held in accordance with the principles of natural justice. The committee can call for physical attendance of complainant & respondent and necessary documentation in from the employer during the process of enquiry.

The committee may terminate a compliant or pass an ex-parte decision, if any of the parties fails, without sufficient cause, to present themselves for three consecutive hearings. Provided that such ex-parte order may not be passed without giving a fifteen (15) days advance notice in writing to the parties. There shall be no legal practitioner allowed during the enquiry by any of the parties and atleast three members of the committee Presiding Officer shall be present in hearing.

Upon completion of enquiry, the committee shall submit the report to the employer within 10 days and the employer is required to act on the recommendations within 60 days of receipt of the Inquiry report. Any party can prefer an appeal against the decision of the committee within 90 days from the date of recommendations.

Powers of the Committee

The Internal or Local committee shall be vested with the powers of Civil Court under the Code of Civil Procedure, 1908 such as:

1. It can summon and enforce the attendance of any person and examining him on oath
2. it can require the discovery and production of documents
3. any other matter which may be prescribed.

Interim relief by the Committee

On the request of complainant, the committee may recommend the employer to grant following interim reliefs:

1. Transfer of the aggrieved woman or the respondent to any other workplace;
2. Granting additional leave to the aggrieved woman up to a period of 3 months
3. Restrain the respondent from reporting on the work performance of the aggrieved woman or writing her confidential report, & assign to another officer.
4. In case of Educational Institution, restrain the respondent from supervising any academic activity of complainant.

Punishment and compensation

The committee can recommend following punishments that may be imposed by an employer on an employee for indulging in an act of sexual harassment:

1. Punishment prescribed under the service rules of the organization;
2. In absence of service rules, disciplinary action including written apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service, undergoing a counselling session, or carrying out community service;
3. Deduction of compensation to be paid to the aggrieved woman from the salary of respondent.

The compensation to be paid to the aggrieved woman shall be determined on the basis of

1. the mental trauma, pain, suffering and emotional distress caused to the aggrieved employee
2. The loss in career opportunity due to the incident of sexual harassment
3. Medical expenses incurred by the victim for physical/ psychiatric treatment
4. The income and status of the alleged perpetrator
5. Feasibility of such payment in lump sum or in installments

False or malicious complaint:

Where a false or malicious complaint has been filed by the complainant knowing it to be false or any forged or misleading documents has be provided by the aggrieved woman or the person making the false complaint, the committee shall recommend to the employer to take action as per the services rule applicable to the complainant and if there are no service rules applicable, any disciplinary action such as such as written apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service, undergoing a counselling session, or carrying out community service may be taken.

Confidentiality

The information pertaining to POSH Act shall not be subject to the Right to Information Act, 2005. None of information pertaining to the contents of complaint, identity of complainant or respondent or witness or the documents or the recommendation of IC committee shall be disseminated to the public except the justice secured to any victim without disclosing the identity of parties.

Any information and documents related to the POSH Act is required to be kept confidential considering the sensitivity attached. If any person disseminates the information prohibited under POSH Act, the employer has a right to recover a sum of Rupees Five Thousand only (Rs. 5000) as penalty from such person.

Duties and Obligations of Employer

1. To provide a safe working environment at the workplace
2. To Prepare a gender neutral policy on sexual Harassment and widely disseminate the same
3. To display at any conspicuous place in the workplace, the penal consequences of sexual harassments
4. To organize workshops and awareness programmes for employees at regular intervals
5. To provide necessary facilities to the Internal Committee or the Local Committee
6. To assist in securing the attendance of respondent and witnesses before the Committee
7. To make available any information to the Committee, regarding the complaint filed
8. To provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code, 1860
9. To cause to initiate action, under the Indian Penal Code,1860 against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace
10. To treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct
11. To monitor the timely submission of reports by the Internal Committee.
12. To prepare an annual report with details on the number of cases filed and their disposal and submit the same to the District Officer.