Note on Prevention of Sexual Harassment of Women At Workplace ((Prevention, Prohibition And Redressal) Act, 2013 (Posh Act)
BACKGROUND:
The Act to prevent incidents of sexual harassment at workplace was enacted after 16 years of the Supreme Court judgment in the case of Vishaka & Ors. vs. State of Rajasthan & Ors. (1997 (7) SCC 323) which was filed by NGOs because of the brutal gang-rape of a social worker while she was at work. The Supreme Court, in this case had held that sexual harassment at work place is violative of constitutional rights of women (including rights of equality, to practice any profession and to right to life with dignity) and are discriminatory towards women. In the absence of legislative safeguards, the Court, stated that an “affective alternative mechanism” was needed to prevent violations of these fundamental rights in the workplace and to address the issues and to fill the legislative vacuum, Supreme Court in the same case also laid down certain guidelines which made it mandatory for every employer to provide for a mechanism to redress grievances relating to sexual harassment at work place (“Vishaka Guidelines”). The Court also stated that the Vishaka Guidelines were to be treated as a declaration of law and were to be applicable until relevant protective legislation was enacted by the Parliament.
In this regard, to tackle the problem of sexual harassment, the Ministry of Women and Child Development (“Ministry”), by a Notification dated December 9, 2013 passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which became effective from December 9, 2013. The Ministry also made the rules with regard to the same effective from the same date. These rules are called the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (the “Rules”).
As per Section 134 of the Companies Act, 2013, every company is required to prepare report of Board of Directors for each financial year. Board report should contain disclosures as per Section 134 read with rule 8. After notification of Companies Amendment Act, 2017, some amendments were made under Section 134 of the Companies Act, as per which the report of Board shall contain “a statement that the company has complied with provisions relating to the constitution of Internal Complaints Committee under Sexual harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013”
(A) Applicability of the Act:
POSH Act is applicable to every workplace, establishment, company or organization irrespective of its
location or nature of industry.
(B) Constitution of Internal Complaint Committee (ICC):
The employer employing 10 or more employees (full time, part time, interns or consultants included) shall have to constitute Internal Complaints Committee, headed by a “female presiding officer”, a body envisaged to receive complaints on sexual harassment from an aggrieved woman, as well as to inquire into and make recommendations to the employer on the action required.
Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the Internal Committee shall be constituted at all administrative units or offices.
In case of establishments who have less than 10 employees, Internal Complaints Committee need not be formed and the complaints can be filed to the “Local Committee” formed by the District Officer.
(C) Composition of ICC:
ICC is required to consist of a minimum of four (4) members:
1. A Presiding Officer who has to be a woman employed at a senior level at workplace. She has to be from amongst the employees.
2. Two Members from amongst employees. For these two members, employers should prefer to have employees who are committed to the cause of women or who have had experience in social work or have legal knowledge.
3. One Member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment (“External Member”).
At least half of the total Members of the ICC should be women.
(D) Fee for the External Member:
The External Member appointed from amongst the NGOs or associations is entitled to an allowance by the employer, of Rs. 200 per day for holding the proceedings of the ICC and also the reimbursement of travel cost.
(E) Term for the ICC Members:
All the ICC members can hold office for three years.
(F) Removal of ICC Member before completion of the term:
The POSH Act provides for certain situations in which an ICC member may be removed from the ICC before
completion of the term. The vacancy has to be refilled in accordance with provisions of the law.
(G) Duties of an Employer:
The POSH Act provides for several duties of the employer. Such duties begin at the time when an employer has to set up an internal complaints committee to ensure that aggrieved can file their complaints and seek redressal to such complaints and end at the time when the employer has provided certain data, in accordance with the provisions of the law, in relation to sexual harassment in its annual report. There are several other duties of an employer under the law, some of which are provided below:
1. Provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;
2. Display at any conspicuous place in the workplace, the penal consequences of sexual harassments: and the order constituting, the Internal Committee;
3. Organize workshops and awareness programs at regular intervals for sensitizing the employees with the provisions of the Act and orientation programs for the members of the Internal Committee. With respect to workshops and awareness programs, it says that employer shall:
- Formulate and widely disseminate an internal policy or charter or resolution or declaration for prohibition, prevention and redressal of sexual harassment at the workplace intended to promote gender sensitive safe spaces and remove underlying factors that contribute towards a hostile work environment against women;
- Carry out orientation programs and seminars for the Members of the Internal Committee;
- Conduct capacity building and skill building programs for the Members of the Internal Committee;
- Declare the names and contact details of all the Members of the Internal Committee;
- Use modules developed by the State Governments to conduct workshops and awareness programs for sensitizing the employees with the provisions of the Act.
4. Provide necessary facilities to the Internal Committee for dealing with the complaint and conducting an inquiry.
5. Assist in securing the attendance of respondent and witnesses before the Internal Committee.
6. Make available such information to the Internal Committee as it may require having regard to the complaint.
7. Provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code.
8. Cause to initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place.
9. Treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct.
10. Monitor the timely submission of reports by the Internal Committee.
(H) Formulation of Policy and Training Program:
The organization should formulate internal POSH policy for the prevention and redressal of sexual harassment at workplaces and also require carrying out Orientation and training programs. Organization should formulate internal POSH policy for the prevention and redressal of sexual harassment at workplaces and also require carrying out Orientation and training programs.
(I) Annual Report:
As per Prevention of Sexual Harassment Act, 2013, there are 2 reports to be submitted by the employer:
1. It is the duty of the ICC to submit an annual report, which includes the number of cases filed/disposed of every calendar year to the employer and district office.
2. The employer has a statutory obligation to ensure this report is included in the annual report of the organization filed to the Registrar of Companies.
(J) Reporting under Board Report:
It is compulsory for a company to make a statement in the Director’s/ Board Report that it has complied with the provisions the Sexual Harassment Act and the constitution of the ICC.
(K) Penalties:
1. An employer can be subjected to a penalty of up to INR 50,000 for failure to constitute ICC or breach of any provision of the Act or any rules made thereunder.
2. Where an employer repeats a breach under the Act, they shall be subject to:
(i) Twice the punishment or higher punishment if prescribed under any other law for the same offence.
(ii) Cancellation/Withdrawal/Non-renewal of registration/license required for carrying on business or activities.
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