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Legal handbook on prevention of sexual harassment at workplace (POSH) Act

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The workplace harassment was first recognized in the year 1997 by the Supreme Court in the case of Vishaka & Ors. vs. State of Rajasthan & Ors., 1997 6 SCC 241 wherein the Supreme Court laid down certain binding guidelines to provide for mechanism to deal with complaints of sexual harassment. The Supreme Court also requested the government to adopt suitable measures including legislation to ensure that the guidelines are followed in the private sector. After 16 long years, the law on workplace sexual harassment was promulgated.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (commonly known as “POSH Act”) was enacted in the year 2013 to provide for the mechanism for protection of woman from sexual harassment at work place and for the due redressal of such complaints. The POSH Act is not a gender-neutral legislation as it provides for mechanism to deal with complaints of sexual harassment by women only. However, there is no bar on the employer to provide for similar protection to men in their Anti-Sexual Harassment policy.

What constitutes sexual harassment?

The word sexual harassment as defined in Section 2(n) of the Act, includes following unwelcome acts or behavior (whether directly or by implication) namely: (i) physical contact and advances; or (ii) a demand or request for sexual favors; or (iii) making sexually coloured remarks; or (iv) showing pornography; or (v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Furthermore, the following circumstances if they occur or are present in relation to or connected with any act or behaviour of sexual harassment may also amount to sexual harassment.

(i) implied or explicit promise of preferential treatment in the employment; or

(ii) implied or explicit threat of detrimental treatment in the employment; or

(iii) implied or explicit threat about the present or future employment status; or

(iv) interference with the work or creating an intimidating or offensive or hostile work environment; or

(v) humiliating treatment likely to affect the health or safety.

These circumstances are not exhaustive, but are inclusive. The definition of sexual harassment under POSH Act is of wide import. It covers both direct and implied conduct within its ambit. The courts have also given wider interpretation to this term. Similarly, the definition of the workplace is also inclusive and is of wide import.

Establishment of Internal Complaints Committee

Every employer needs to constitute an Internal Complaints Committee (ICC) if the number of employees in the organization exceeds ten. In case, the employer has offices or business units at different places, then the employer needs to constitute such a committee at all the offices/units.

It is important to properly establish the ICC as the courts usually do not interfere in the proceedings before the ICC. The courts have also refrained from interfering with the punishment recommended by the ICC unless the punishment is shockingly disproportionate.

Registration of Internal Complaints Committee

Some states also mandates registration of the ICC with the authorities. Establishments in Telangana are required to register the ICC on the state’s Sexual Harassment Electronic Box (T-she Box) https://tshebox.tgwdcw.in. Establishments in Maharashtra are required to register by submitting a prescribed form with the district authorities.

Filing of Complaint and Inquiry

Filing of Complaint

• An aggrieved woman can file the complaint with ICC within three (3) months of incident of sexual harassment. However, this can be further extended for 3 months.

Attempt for settlement

• On the request of aggrieved woman, the ICC can make efforts to settle the matter amicably through conciliation but monetary settlement cannot be made as a basis of conciliation. If the matter is settled, ICC shall record the settlement and shall forward the copies of the same to the employer, the aggrieved woman and the respondent. Where a settlement is arrived, no further inquiry is conducted by the ICC.

Interim Reliefs to the aggrieved woman

• If the matter is not settled, the ICC shall inquire into the complaint. During pendency of inquiry, the ICC can recommend (i) the grant of leave to the aggrieved women upto three (3) months, or (ii) the transfer of the women or the respondent to any other workplace, or (iii) to restrain the respondent from reporting on work performance or confidential reports of the aggrieved women, or (iv) in case of an educational institution, to restrain the respondent from supervising the academic activity of the aggrieved woman.

Conduct of Inquiry

• The inquiry has to be completed by the ICC within a period of ninety (90) days. The Inquiry report has to be submitted to the employer within ten (10) days. Thereafter, the employer has to act upon the recommendations within sixty (60) days.

Action if allegations are proved

• If the ICC arrives at the conclusion that the allegations are proved against the respondent, it can recommend action under service rules. It can also recommend payment of compensation (to be determined having regard to factors mentioned in Section 15 of the POSH Act) to the aggrieved woman. If no service rules exist, it can recommend taking of any action including a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service or undergoing a counselling session or carrying out community service.

Action if frivolous complaint or forged document is filed

• If the ICC arrives at the conclusion that the allegation against the respondent is malicious and the complaint has been made despite knowing it to be false or if any forged or misleading document has been produced, it can recommend action against the complainant. However, mere inability to substantiate the complaint or failure to provide adequate proof will not attract any action. Also, the malicious intent on part of the complainant has to be established in an inquiry.
• The ICC can also recommend action against any person who has given false evidence or produced any forged or misleading document.

Confidentiality

Given the sensitivity and the reputation of the parties involved in the matter, the POSH Act prohibits disclosure or publication of any information relating to the proceedings conducted under POSH Act. The information cannot be disclosed even under the RTI Act. It also provides for penalty in case of contravention of confidentiality provisions.

Appeal

An appeal can be filed by the complainant or the respondent before the appellate authority notified under the Industrial Employment (Standing Orders) Act, 1946 within ninety (90) days of the recommendations.

Consequences of non-compliance

Any employer which fails to constitute an ICC or to act on the recommendations of the ICC can be punished with fine up to INR 50,000. A second instance of the non-compliance could result in punishment being doubled and also the cancellation of the license or registration for carrying on the business.

Duties of an Employer

The POSH Act imposes certain obligations on the employers to promote safe working environment at the workplace. These obligations have been provided in Section 19 of the POSH Act. In a nutshell, the Act requires the employer to promote awareness by displaying and by organizing workshops, training, etc., to assist the complainant to file the complaint, to assist the ICC during the inquiry, to treat sexual harassment as a misconduct and to ensure filing of annual report with the authorities.

Judicial Pronouncements

The Madhya Pradesh High Court imposed a fine of INR 50,000 on a renowned hospital in Indore for its failure to constitute the ICC. The hospital also directed the hospital to pay compensation to the victim. (Refer Global Health Private Limited & Mrs. Arvinder Bagga vs. Local Complaints Committee, District Indore and Ors.)

The Punjab & Haryana High Court directed an employer to reconstitute the ICC as it did not have an external member. (Refer Neelam Bhardwaj vs. State of Punjab & Ors., 2018 LLR 1286)

The Kerala High Court set aside an order of the ICC as the procedure enunciated under the POSH Act was not duly followed. (Refer Dr. T.V. Ramakrishnan vs. Kannur University, 2018 LLR 990)

Analysis

The POSH Act is still in its nascent stage with lack of clarity on certain aspects. However various judicial pronouncements have attempted to bridge the gaps in the legislation. There are precedents to show that the inquiry by the Internal Committee (ICC) is generally accepted by the courts if the ICC is properly constituted in accordance with the provisions of the POSH Act and rules framed under the Act.

With the rise in reported cases of sexual harassment at workplace, it is imperative for the employers to take pro-active steps to redress the complaints of sexual harassment at workplace by strictly adhering to the procedural and legal requirements mandated by the law. The employers are also required to train their ICC members to keep them updated with the latest judicial pronouncements so as to avoid any potential error on their part.