In this post we will discuss about THe Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013(POSH) and its various sections in detail.
PREVENTION OF SEXUAL HARRASMENT (POSH) IN OFFICE
The Sexual Harassment of Women at Workplace (prevention, prohibition and redressal) Act, 2013 was enacted as a complete legislation in favour of female employees and in order to provide them with safer atmosphere at work and also offer them less complex redressal procedures within their working organization. This basically aims at safe and secure environment for all the employees and free from any sort of sexual harassment at work. In the landmark judgment of Vishaka and Ors. v. State of Rajasthan and Ors, 1997, the case was a semi public interest litigation where the Supreme Court had laid down certain guidelines for dealing with incidents of sexual harassment at work place, which was later codified into the POSH Act, 2013.
Apart from the Vishaka case, there was a survey conducted by the Indian National Bar Association at the BPOs, IT Sector offices and at educational institutes, corporate firms, hospitals, legal firms where atleast 6,047 people participated and 78% of them were females and remaining 28% were males. As per the results of survey it was found that 38% of women faced sexual harassment at their workplace and out of which 68.9% refused to make any complaint regarding the matter due to fear of loss of job, embarrassment, lack of confidence etc. When these women were questioned about legal protection, 42% of them stated that they didn’t feel protected at work. This kind of fear and harassment leads to lower job satisfaction and decrease in productivity of the employee and puts a bad impression on the working culture, thus there was a pressing need of enacting such legislation against all forms of sexual harassment faced at workplace.
In the abovementioned judgment and the POSH Act “Sexual Harassment” can be defined as any unwelcoming sexual behaviour, whether directly or implied manner such as in form of physical contact or advances, demand or request for sexual favors, showing pornographic content, making any sexually colored remarks or any sort of unwelcome physical, verbal or non-verbal conduct of a sexual nature.
Sexual harassment violates the fundamental rights of a woman under the Article 14 and 15 of the Constitution of India, which offers equality to all irrespective of their gender, caste, creed, race etc. It also infringes the right to live life with dignity under Article 21 of the Indian Constitution, which ensures right to practice any profession in a safe environment free from any sort of sexual harassment. Thus, this kind of harassment is total violation of the rights of the person and even disturbs the work environment and builds up a sense of insecurity among the employees. This law was enforced to prevent and provide protection to women at their workplace, and it also worked as redressal for such harassment cases.
Under this Act, the employer is required to abide by the pre-requisites as states under the statutory requirements. One of the major requirements of the Act is constitution of Internal Complaints Committee (ICC) within the work place. The Committee is a body envisioned to receive complaints regarding sexual harassment matters at the workplace from any aggrieved female employee, and to make further inquiry with regard to the matter and then make recommendations to the employer on the action which needs to be taken with respect to the inquiry done of such complaint.
WHAT DOES THE LEGISLATION STATE?
The POSH Act has a wide ambit and is not restricted to the traditional workplaces. It includes any and every place visited by the employees during its course of employment including the transportation. Certain unconventional workplaces which comprise of telecommuting and virtual work spaces also come under the view of this Act. The Act states that it is not necessary that the woman can be harassed working at her workplace only. The Act protects all those women who are harassed in any workplace, may it be government or private.
The section 4 of the POSH Act states that every employer having more than 10 employees must establish an Internal Complaint Committee (ICC) within the workplace to deal with the complaint of sexual harassment. The Committee consists of 4 members, out of which half of them should necessarily be women. The members of ICC are-
1. A Presiding Officer appointed from Senior Management (must be woman)
2. One member outside the workplace from a non-governmental organization or a lawyer
3. Member from the company who has legal knowledge and expertise in these kinds of cases
4. Any member dedicated to the cause of women
There are certain set of rules made for the employees, such as all the employees of the firm/ institute must undertake sensitization training annually, as the legislation aims to prevent Sexual Harassment in all forms at the office level. Each complaint made by the female employee irrespective of the intention of the accused and the gravity of its impact should be addressed carefully and seriously by the Committee. The Committee should also inquire and investigate the incident after the complaint is lodged, and even a single occasion of forwarding of an indecent joke or picture through social media can be a basis of complaint. Every company, office or firm should educate and aware their employees through proper triggering programme and come about with policies against sexual harassment along with the other obligations mentioned under the Act. Certain features which need to be kept in mind in the POSH policy, are as follows:
Ø Formation of ICC compulsory for handling of the sexual harassment complaints
Ø The Committee will comprise of 4 members and headed by senior most women in office
Ø The complaint needs to be lodged within 3 months of the happening of the incident and has to be resolved in 90 days.
Ø Once the complaint is made, inquiry has to be done by the ICC and it has to submit its Inquiry report and give recommendations to the employer within 10 days.
Ø The office/ firm has to act within 60 days on the recommendations presented by the ICC and take action on the accused person respectively. If the accused party or the complainant is not satisfied with the decision of the report can approach the Tribunal.
Ø There are no lawyers to be appointed for the ICC proceedings.
Ø The employer of the office can be punished upto Rs 50 thousand in case of non-compliance and repeated defaults in this kind of issues and may also cancel the license of the company.
Ø ICC can award monetary compensation as well as certain extra leaves to the victim. The victim can also be shifted to other department of work where she feels safe.
Ø In offices, where there are less than 10 employees, the complaint can be made to the local committee set up by the District Court or State Government.
As per the POSH Act, the employer has to specify the term of office of each member of the ICC, which cannot be more than 3 years from date of their nomination. But there are many unaddressed issues with this tenure aspect as there is no clarity on the manner of disposal of an ongoing inquiry in the event of prior retirement, resignation or replacement of a member/ members of the Committee. But given the extra emphasis on the chapter with regard to disposal of the matter by ICC has to be within 90 days as per the guidelines, but the duration for submitting the inquiry report to the employer is of 10 days, thus during this period the retiring/ resigning member or members of the ICC should be replaced immediately by the employer without wasting much time and the inquiry should be resumed with the new panel. Although, some judicial precedents over this matter in future would provide more clarity on this aspect of the ICC members and would also be beneficial for the employers to follow a designated approach in case of such issue.
CONSTITUTION OF ICC
The office/ establishment with 10 or more employees is strictly instructed to set up an ICC, even though this numerical criterionhas not been overtly mentioned in the POSH Act with reference to functioning of the ICC and one can deduct that from a harmonious reading of the Statute, where the provision guiding the government to form a local Compliant Committee in every district where the Committee has to carry out functions similar to ICC with organizations having less than 10 employees or where the complaint is against the employer itself.
Fortunately, the POSH Act has given a broad definition of “employee” which incudes persons employed on a temporary, ad hoc or daily wage basis and even the trainees, volunteers and persons employed through agent/ contractor. The definition of “employer” includes governmental organizations, private sector organizations and even households. With respect to the private organizations an employer can be understood as any person accountable for the administration, supervision and control of the workplace. It was further clarified that person, board or committee authorized to preparation and supervising of the policies of the firm will come under the purview of Management. The POSH Act doesn’t specify any fixed duration for compliance of formation of ICC after its applicability is being attracted i.e. the employer should take initiative to form an ICC once the headcount of employees goes beyond 10 employees.
For better implementation of such statutory requirement of constitution of ICC and to guarantee that such issues were brought to the attention of board of directors, there were few recommendations made by the Ministry of Women and Child Development regarding corporate reporting requirements. Taking these recommendations into consideration it was notified in the Companies (Accounts) Amendment Rules, 2018 issued under section 134 of the Companies Act, 2013 to ensure safe workplaces for women in the private sector. As per the Companies Rules, it was mandatory for every company to add a statement in its annual report stating that they have complied with provisions regarding the institution of an ICC under the POSH Act, 2013. Thus, this is director’s responsibility that abovementioned statement is incorporated in the company’s annual report. It has also been suggested that the organization should not wait for the first complaint to be registered as a reason for establishment of ICC.
Another issue faced while implementing of the Act in accordance to the formation of ICC was for the organizations which are situated in more than one location. As per the POSH Act, an employer having numerous offices or units in different places has to constitute an ICC for each of such unit or offices. But for some establishments this was not practically possible for example in case of restaurants and hotels as it will lead to increased cost of administration and lack of consistency in practice and functioning of such Committees in each branches of the organization.
These were some genuine problems coming up on part of the organizations and thus certain relaxations were allowed by the Ministry of Human Resources Department to the establishments like having a centralized committee with local members in each unit co-operating with the central committee while holding of the inquiry. But it is matter of concern that no such provision stating any kind of relaxation provided in the POSH Rules or POSH Act and they advocate that the employer having multiple units or branches should have its own designated ICC and they have to mandatorily comply with this provision.
Also Read- Posh ACT Section 19 – Duties of employer
Certain judgements have been working as precedents where the ICC was not constituted as per the guidelines mentioned under POSH Act. For example, in case of Ruchika Singh Chabbra v. Air France India and Anr, 2018, it was held by the High Court of Delhi that the external member of ICC didn’t possess the required qualifications and the constitution of such ICC was made invalid and the proceedings conducted by the ICC were set aside. The High Court directed to reconstitute the ICC in compliance with the POSH Act and conduct a fresh inquiry of the petitioner.
Another case of K. Hema Latha v. the State of Tamil Nadu and Ors, 2018 where the ICC of an educational institution was comprising of members of administrative department only and no external member was part of it. Thus, the report of ICC was not accepted by the Madras High court which included the inquiry of charges of sexual harassment. But the committee was not instituted as per the provisions of POSH Act. Thus, the institute was directed to form another ICC in compliance with the POSH Act in a time bound manner which would be required to conduct the inquiry of the present complaint and submit its report to the employer after hearing the parties.
Also Read- Prevention of sexual Harassment at workplace
So basically, if we look into the POSH Act, it describes that if the employer fails to institute an ICC would comprise as offence under the POSH Act and punishable with fine for amount upto Rs 50k. If the employer is convicted for the same offence for the second time then he will be penalized with fine for twice such amount and it may also lead to cancelation of his licenses, registrations or approvals from the government or local authorities. Other major concern of the organization should be regarding subsequent media houses which are being associated with the sexual harassment charges, especially in today’s world, everyone is well aware of their rights and even know how to affect the reputation of the organization, as this is the age of technology and social media and everyone knows what effect a bad press has on the image of the office. It has the potential to dent the organization permanently.
Thus, while ensuring that his policies are in accordance to the provisions of POSH Act and Rules, the employer should also ensure a liberated and well aware, supportive and non-toxic work atmosphere by holding up various programmes with respect to sexual harassment awareness seminars and educating his employees on how to work efficiently with the female employees without initiating any sexual remark. The senior and experienced executives should lead such seminars and inform the female workers about the facility available within their work premises in form of ICC to lodge any compliant. In short the offices/ organizations should try and prevent happening of any such occurrence and work on it rather than just rendering a mere lip service and also be impartial while listening to the complaint of the female workers and should not involve any personal grudges or prejudices while rendering any of the recommendations.
This post was written by Rhea Banerjee
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