The sexual harassment of women at workplace Prevention, Prohibition, and Redressal Act 2013” – “POSH Act
Objective: The Prevention, Prohibition, and Redressal of Sexual Harassment at Workplace Act 2013, also known as the POSH Act, is a comprehensive legislation enacted in India to protect women from sexual harassment in the workplace. Its primary objective is to prevent such incidents from occurring, provide a mechanism for redressal of complaints, and ensure a safe and conducive work environment for women. This article provides an overview of the key provisions and scope of the POSH Act.
Applicability and Scope: The POSH Act applies to the entire territory of India, encompassing both the organized and unorganized sectors. It covers various types of workplaces, including government bodies, private and public sector organizations, non-governmental organizations, commercial establishments, financial institutions, educational institutes, healthcare facilities, sports institutions, and even dwelling places or houses. The act also recognizes the concept of an extended workplace, which includes any location visited by an employee during the course of employment, including employer-provided transportation. (Sec 1).
Aggrieved women : Under Section 2(a) of the POSH Act, an aggrieved woman is defined as any female individual, regardless of age or employment status, who alleges to have been subjected to an act of sexual harassment.
Workplace: The workplace has been defined u/s 2(o). The section makes the act applicable on government bodies, private and public sector organizations, non-governmental organizations, organizations carrying out commercial, financial activities, vocational, industrial, educational, entertainment, hospitals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals and also applies to a dwelling place or a house. The act has also introduced a concept of extended workplace, as the term ‘workplace’ includes any place visited by the employee arising out of or during the course of employment, including transportation by the employer for undertaking such a journey.
Complaints Committee:
Internal Committee (IC): Every employer of a workplace (having 10 or more workers) shall constitute an Internal Complaints Committee at every place wherever the offices or administrative units of the workplace are located. (Sec 4)
Constitution of the IC:
Local Committee (LC): A LC must be constituted by the appropriate government (by notifying a District officer or other district officer) for every district under this act for receiving complaints of sexual harassment from establishments where the IC has not been constituted because of having less than ten members or where the complaint is against the employer himself. (Sec 5 & 6)
Constitution of the IC (Sec 7):
Complaints Mechanism: A written complaint is to be made to the IC, if such constituted, or to the LC by any aggrieved woman within 3 months from the date of the incident and in case of a series of incidents, within 3 months from the date of the last incident. In case the aggrieved woman is unable to make such a complaint, because of any incapability or death or otherwise her legal heir or any other prescribed person can make a complaint on her behalf. (Sec 9)
Conciliation: After receiving a complaint of sexual harassment, IC or LC shall on a request of the woman and before initiating inquiry under sec 11 take steps to settle the matter between her and the respondent through conciliation. It should be considered that no monetary settlement can be made under the process of conciliation. (Sec 10)
Inquiry: When conciliation is not an option, inquiry on the basis of the complaint is initiated. IC or LC must proceed with the inquiry as per the provisions of the service rules applicable to the respondent (where respondent is a fellow employee).
In case no such rues are available the committee must proceed in any other prescribed manner or in case the complaint is made by a domestic worker, as defined u/s 2(e), the LC shall forward the complaint to the police, within 7 days of receiving the complaint, so that the case could be registered under the provisions of Indian Penal Code. The inquiry under this section must be completed within a period of nighty days from the date of its initiation. (Sec 11)
The act states that the IC and LC shall, while inquiring into a complaint of workplace sexual harassment, have the same powers as vested in a civil court under the Code of Civil Procedure when trying a suit in respect of:
1. summoning and enforcing the attendance of any person and examining him on oath;
2. requiring the discovery and production of documents, and;
3. any other matter which may be prescribed. (Sec 11)
Inquiry Report: The committee must provide its report within 10 days of completion of inquiry to the employer or District Officer. A copy of the same must also be made available to the concerned parties. Interim orders like leaves, transfer or else can be provided to the aggrieved woman on a written request. (Sec 12 & 13)
Punishment and Compensation: The act prescribes the following punishments for an employee, who is found guilty in an act of sexual harassment:
1. Any punishment prescribed under the framed policies or service rules of the organization, in case there are no such rules, in any other prescribed manner;
2. Deduction from the salary or wages of the respondent such sum as it may be appropriate to be paid as compensation to the aggrieved woman.
The Act also envisages payment of compensation to the aggrieved woman. The compensation payable shall be determined based on the various factors stated u/s 15 of the act.
Punishment for malicious or false complaint: For ensuring that the protections under this act are not misused, provisions for false and malicious complaints are also provided. If the IC/ LC concludes or is of opinion that the allegation made by any woman is malicious or false or the complaint has been made knowing it to be untrue or forged or misleading information has been provided during the inquiry, disciplinary action in accordance with the service rules of the organisation must be taken against such complainant.
Where the service rules are not available, disciplinary action such as written apology, warning, reprimand, censure, withholding of promotion, or other prescribed actions can be taken. (Sec 14)
Prohibition of Right to Information Act (RTI Act): The provisions of RTI Act are not applicable to the complaints, inquiry reports, proceedings or any other information regarding the conciliation or inquiry. If any person contravenes these provisions, he shall be liable for a penalty in accordance with the service rules or in any other prescribed manner. (Sec 16 & 17)
Annual Reports: Committees (IC or LC) must provide an annual report of all the complaints, inquiries or cases and submit the same to the employer or District Officer as the case may be. The employer must also, in the annual reports, includes the cases related to sexual harassment and their status, respectively.
Penalty for contravention: If an employer fails to comply with any of the provision of this act, he shall be liable for a fine that may exceed to INR 50,000. If an employer is convicted of an offence punishable under this act more than one time:
1. He shall be liable to twice of the punishment that was imposed on the first conviction.
2. His license for carrying on his business activity shall be cancelled or withdrawal by the appropriate government. (Sec 26)
Non-Cognizable Offences: Every offence under this act is a non-cognizance is nature. (Sec 27)
Mandatory disclosure of Compliance of Prevention of Sexual Harassment at Workplace:
The Companies (Accounts) Amendment Rules, 2018 (‘Rules’) under section 134 of the Companies Act, 2013 were notified on 31st July 2018 by the Ministry of Corporate Affairs including Clause (x) in Rule 8 of the rules which requires every Company to report compliance with the provisions relating to the constitution of an Internal Complaints Committee under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 in its Board Report.
Conclusion
The Prevention, Prohibition, and Redressal of Sexual Harassment at Workplace Act 2013, or the POSH Act, plays a vital role in safeguarding the rights of women and creating harassment-free workplaces in India. By establishing Internal Complaints Committees and Local Committees, the act ensures the prompt and fair resolution of complaints. It also emphasizes the importance of preventive measures, conciliation, and appropriate punishment for offenders. Through its comprehensive provisions, the POSH Act aims to foster a culture of respect and equality in the Indian workplace.
References:
- Article-India’s Law on Prevention of Sexual Harassment at the Workplace at http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/Prevention_of_Sexual_Harassment_at_Workplace.pdf
- POSH Act at http://legislative.gov.in/sites/default/files/A2013-14.pdf
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