The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 also called as “POSH” was incorporated with an object of providing protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment.
Sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her rights to life and to live with dignity under article 21 and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment.
Thus, in order to provide a safe working environment for women and to protect their Constitutional rights, the POSH Act was passed by the Ministry of Women and Child Welfare.
WHAT CAN BE TERMED AS SEXUAL HARASSMENT AT WORKPLACE:
“Sexual Harassment” includes any one or more of the following unwelcome acts or behaviors (whether directly or implication) namely-
- Physical contact and advance; or
- A demand or request for sexual favours; or
- Making sexually coloured remarks; or
- Showing pornography; or
- Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Further the following circumstances, among other circumstance, if occurs or is present in relation to or connected with any act or behavior of sexual harassment may amount to sexual harassment:
- Implied or explicit promise of preferential treatment in her employment; or
- Implied or explicit threat of detrimental treatment in her employment; or
- Implied or explicit threat about her present or future employment status; or
- Interference with her work or creating an intimidating or offensive or hostile work environment for her; or
- Humiliating treatment likely to affect her health or safety.
APPLICABILITY OF THE POSH
POSH provisions are applicable to all establishments, companies, organization’s (whether public or private) employing 10 or more employees (whether permanent, temporary, ad-hoc, consultants, interns or contract workers irrespective of gender) irrespective of business or industry.
COMPLIANCES UNDER POSH
(1) Constitution of Internal Complaints Committee
(2) Formulation of Internal POSH Policy
(3) Organizing Workshops, Awareness Programs and Orientation Programs.
(4) Submission of Reports
CONSTITUTION OF INTERNAL COMPLAINTS COMMITTEE (ICC):
1. Every employer of the workplace shall constitute a committee called as “Internal Complaints Committee” under section 4 of the Act.
2. The Internal Complaints Committee shall consist of the following members to be nominated by the employer, namely:
- PRESIDING OFFICER Shall be a women employed at a senior level at workplace amongst the employees.
- TWO INTERNAL MEMBERS– At least 2 members amongst employees preferably committed to cause of women or who have experience in social work or have legal knowledge.
- ONE EXTERNAL MEMBER– 1 Member amongst non-governmental organizations or associations committed to the cause of women.
3. At least one-half of the total members so nominated shall be women.
4. The presiding officer and every member of the Internal Committee shall hold office for such period not exceeding 3 years.
5. The members appointed amongst the non-governmental organizations or associations shall be paid shall be paid such fees or allowances by the employer for holding the proceedings of the Internal Committees.
6. Where the presiding officer or any member of the Committee, contravenes any provisions of section 16, or has been convicted for an offence or inquiry into offence, or has been found guilty in any disciplinary proceeding, then such presiding officer or member (as the case may be) shall be removed from the committee.
7. Any vacancy in the Committee shall be filled by fresh nomination.
FORMULATION OF INTERNAL POSH POLICY
Every employer of the workplace shall be responsible to have a Policy for protection of women from sexual harassment at workplace. Such policy shall contain following details:
- The objective and scope of such policy.
- Function and duties of Internal Complaints Committee
- Composition and contact details of Internal Committee members
- Redressal Mechanism
- Conciliation opportunity
- Inquiry procedure
- Reports submissions
ORGANISING WORKSHOPS, AWARENESS AND ORIENTATION PROGRAMS
Every employer of the workplace shall be responsible:
- To organize workshops and awareness programs at regular intervals for all employees.
- To organize orientation programs for the members of the Internal Complaints Committee.
- To display at any conspicuous place in the workplace, the consequences of sexual harassment and the order constituting the Internal Committee.
SUBMITTING REPORTS UNDER THE ACT
1. The Internal Complaints Committee or the Local Committee, as the case may be, in every calendar year, shall prepare and submit an annual report to employer and district officer.
2. The district officer shall forward a brief report on the annual reports received from Internal Complaints Committee.
3. The employer in his report shall include the number of cases filed, if any, and their disposal.
COMPLAINT OF SEXUAL HARASSMENT
1. Any aggrieved women can make a complaint in writing about the sexual harassment at workplace to Internal Complaints Committee (If constituted) and if not, then to the Local Committee, within a period of 3 months from the date of incident and in case of a series of incidents, within a period of 3 months from the date of last incident.
2. Where the aggrieved women is unable to make a complaint on account of her physical, mental incapacity or death or otherwise, her legal heir may make a compliant.
3. The Internal Committee or the Local Committee may before initiating an inquiry under section 11 and at the request of the aggrieved women take step to settle the matter between her and the respondent through conciliation.
4. If the matter is settled, the Internal Committee or the Local Committee will take into records and forward the same to employer or district officer to take further action.
5. When settlement is arrived, no further inquiry shall be conducted by the Internal Committee or the Local Committee.
INQUIRY OF COMPLAINT
1. If the settlement is not arrived, the Internal Complaints Committee or the Local Committee shall proceed with the inquiry under the Act.
2. A copy of the complaint should be sent to accused within 7 days of receipt of complaint by aggrieved women and the accused shall submit his reply within 10 days from the receipt of the complaint.
3. After completion of an inquiry, the Internal Complaints Committee or the Local Committee, shall provide a report of its findings to the employer or the district officer within a period of 10 days of completion of the inquiry.
4. Where the Internal Complaints Committee or the Local Committee arrives at the conclusion that the allegation against the respondent has not been proved, then it shall recommend to the employer and district officer that no action is required to be taken in this matter.
5. And if the committee arrives at the conclusion that the allegations are proved, then it shall recommend to the employer or district officer, as the case may be-
(i) To take action for sexual harassment as a misconduct.
(ii) To deduct from salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved women or her legal heirs.
6. The employer or the district officer shall act upon the recommendation within 60 days of its receipts by him.
7. Where the Internal Complaints Committee or the Local Committee, arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved women or any other person making the complaint has made a false complaint, then it may recommend the employer or district officer to take action against such women or other person.
COMPLIANCES UNDER COMPANIES ACT, 2013
According to Rule 8 of the Companies (Accounts) Rules, 2014, it is mandatory for a company to make a statement in its directors’ report stating that the company has complied with provisions relating to the constitution of internal complaints committee under the Sexual Harassment of Women at Workplace (Prevention, Protection and Redressal) Act, 2013
Non-disclosure will attract the penalty under section 134 of the Companies Act, 2013
PENALTY UNDER POSH ACT
(1) The employer shall be punishable with fine which may extend to Rs. 50,000/- if he:
- Fails to Constitute an Internal Complaints Committee.
- Fails to Comply with the recommendation of Internal Complaints Committee.
- Fails to file an annual report to the district officer.
- If contravenes or attempts to contravene or abets contravention of other provisions of this Act or any rules made thereunder.
(2) If the employer after having previously convicted of an offence punishable under this Act subsequently commits and is convicted of the same offence, he shall be liable to-
- Twice the punishment which might have been imposed on first conviction, subject to the punishment being maximum provided for the same offence.
- Cancellation of his license, withdrawal or non-renewal or cancellation of registration as required for carrying on his business or activity.
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Disclaimer: Please note that the above article is based on the interpretation of related laws, which may differ from person to person and is not legal advice.
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