Understanding the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act)

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, also known as the POSH Act, is a landmark legislation in India aimed at protecting women from sexual harassment in their workplaces. This blog post will explore the core features of the Act, outlining its provisions, key definitions, and the complaint mechanisms it establishes.

Rationale Behind the POSH Act

The Act recognizes that sexual harassment is a violation of women’s fundamental rights to equality, life, and dignity under the Indian Constitution. It was enacted to align with international conventions and ensure a safe and respectful work environment for women in India.

Key Definitions Under the POSH Act

1. Aggrieved Woman: The Act defines an “aggrieved woman” as:

   • Any woman, regardless of employment status, who alleges to have experienced sexual harassment in the workplace.

   • Any woman employed in a dwelling place or house, when the alleged harasser is also from the same place of employment.

2. Appropriate Government: Refers to the Central Government for workplaces controlled or funded by it, the State Government for workplaces within its territory, and the Union Territory Administration.

3. Chairperson: The presiding officer of the Local Complaints Committee.

4. District Officer: An officer notified by the government to exercise powers and functions under this act.

5. Domestic Worker: A woman employed to do household work, paid in cash or kind, whether on a temporary or permanent basis, full time or part-time, whether directly or through an agency.

6. Employee: Includes anyone working in a workplace for any work on regular, temporary, or daily wage basis, whether with or without pay, including contract workers, trainees, and probationers.

7. Employer:

   • The head of any government organization, department, undertaking, or establishment.

   • For a private sector, the person responsible for management, control, and supervision of a workplace.

   • The person discharging contractual obligations, or who benefits from the employment of a domestic worker.

8. Internal Committee: A committee constituted by the employer at the workplace (with more than 10 employees) to address sexual harassment complaints.

9. Local Committee: A committee constituted by the District Officer in each district to receive complaints where the Internal Committee is not established.

10. Presiding Officer: The presiding officer of the Internal Complaints Committee

11. Respondent: The person against whom the aggrieved woman has made a complaint.

12. Sexual Harassment: Includes unwelcome acts or behavior, whether directly or indirectly, such as:
    * Physical contact and advances.
    * Demands or requests for sexual favors.
    * Sexually colored remarks.
    * Showing pornography.
    * Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
    * Implied or explicit promise or threat relating to employment or future status.
    * Interference with work or creating an intimidating or hostile work environment.
    * Humiliating treatment that affects her safety and health.

13. Workplace:

    • Any government, private or public sector establishment.

    • Hospitals, nursing homes, educational institutes, and sports facilities.

    • Any place visited by the employee during the course of work including transport.

    • Any dwelling place or a house.

14. Unorganized Sector: An enterprise with less than ten workers.

Prevention of Sexual Harassment

The POSH Act clearly states that no woman shall be subjected to sexual harassment at any workplace. The Act also clarifies the circumstances which amount to sexual harassment, as listed in the definition of sexual harassment above.

Establishment of Internal Complaints Committee (ICC)

The Act mandates that every employer with 10 or more employees must establish an Internal Complaints Committee (ICC) at each workplace or office location. The ICC must consist of:

• A Presiding Officer (a senior-level woman employee). If no senior level employee is available, then the Presiding Officer can be nominated from another office/branch of the same employer.

• At least two members from amongst employees who have knowledge of social work or legal issues related to women.

• One member from a non-governmental organization or an individual knowledgeable about sexual harassment issues.

• At least half of the members should be women.

The term of members is for a period not exceeding 3 years. The members also get paid for holding the proceedings, as may be prescribed. If a member contravenes the provisions of Section 16, or is convicted of an offence, or has abused his position, then that member shall be removed from the committee.

Constitution of Local Complaints Committee (LCC)

In every district, a Local Complaints Committee (LCC) is constituted by the District Officer, to receive complaints in the following situations:

• Where the workplace has less than 10 employees and therefore an ICC cannot be set up.

• When the complaint is against the employer.

Every District Officer is to designate one nodal officer at every block, taluka, tehsil, ward or municipality to forward the complaints to the Local Committee within 7 days.

The Local Committee consists of:

• A Chairperson, nominated from amongst eminent women committed to the cause of women.

• One member nominated from women working in a block, tehsil, or ward.

• Two other members, with atleast one woman from a non-governmental organization committed to the cause of women, or anyone with legal knowledge.

• A member ex-officio, i.e. the officer dealing with social welfare/ women and child development in the district.

• Preferably, at least one member from a minority or backward community.

• The term of members is for a period not exceeding 3 years. The members also get paid for holding the proceedings, as may be prescribed. If a member contravenes the provisions of Section 16, or is convicted of an offence, or has abused his position, then that member shall be removed from the committee.

Complaint and Redressal Mechanism

1. Filing a Complaint:

   • An aggrieved woman can file a written complaint of sexual harassment with the ICC or LCC within three months of the incident, or the last incident in a series of incidents.

   • If the complainant is unable to write, then the Presiding Officer of the ICC or LCC shall render all assistance for making the complaint in writing.

   • The committee can extend the time limit for up to three more months for genuine reasons.

   • If the aggrieved woman is incapacitated or dies, her legal heirs may file the complaint.

2. Conciliation:

   • The ICC or LCC may attempt to settle the matter through conciliation, with consent of the aggrieved women, before starting the inquiry.

   • A monetary settlement cannot be the basis for a conciliation.

   • If a settlement is reached, the committee records the settlement and forwards it to the employer or District Officer.

3. Inquiry:

   • If conciliation fails or is not opted for, the ICC or LCC will initiate an inquiry according to service rules applicable to the respondent.

   • In the absence of such rules, the inquiry is to be conducted as prescribed. For domestic workers, if there is a prima facie case, then the Local Committee must forward the matter to the police to register a case under Section 509 of the IPC, and other relevant provisions.

   • The inquiry must be completed within 90 days.

   • Both parties are given a fair opportunity to be heard.

   • The inquiry committee is vested with powers similar to those of a civil court when trying a suit. These include powers to enforce attendance, examine persons on oath, and demand the production of documents.

4. Actions During Inquiry:

   • On the request of the aggrieved woman, the committee can ask the employer to transfer the woman or the respondent, or to grant the woman a leave for up to three months, and provide other reliefs as necessary.

5. Inquiry Report:

   • The committee will send the report of findings to the employer or District Officer within 10 days from completion of inquiry.

6. Action upon recommendations:

   • If the committee finds the respondent guilty, then it can recommend disciplinary action as per service rules, and deduction of salary for the purpose of payment as compensation to the aggrieved woman.

   • The employer or District Officer is to act upon the recommendation within 60 days.

7. False/Malicious Complaint:

   • If the complaint is found to be malicious or made knowingly false, or if the aggrieved woman has provided misleading documents, then disciplinary action can be recommended against the complainant.

8. Payment of Compensation:
   * If the committee finds the respondent guilty, then it may order to pay a certain sum to the aggrieved woman. The sum is determined on basis of mental trauma, medical expenses, loss of career opportunities, financial status of the respondent etc.
   * In case of non payment, the sum will be recovered as a land revenue arrear.

9. Confidentiality:

   • The Act mandates strict confidentiality in relation to the complaint, identity of parties involved, and the inquiry proceedings. Publication or communication of such information to the public is prohibited, unless the justice has been secured, but the identity or any information which can point towards an identification of the involved parties is withheld.

   • Any person entrusted with the duty to handle complaints and contravening the provisions of section 16 shall be liable to penalties under the applicable service rules.

10. Appeal:

• Any aggrieved party is given a period of 90 days to make an appeal against recommendations.

Employer’s Responsibilities

Employers have a crucial role to play in ensuring a safe and harassment-free environment at the workplace. The key duties of an employer include:

1. Providing a safe working environment.

2. Displaying information about the POSH Act and the Internal Committee at prominent locations.

3. Conducting workshops and awareness programs to sensitize employees.

4. Providing necessary facilities to the ICC/LCC for effective handling of complaints.

5. Ensuring the attendance of respondent and witness.

6. Providing assistance to file a police complaint if required.

7. Taking action against the perpetrator, including initiating an inquiry for misconduct as per service rules.

8. Monitoring timely submission of reports by the ICC.

Penalties for Non-Compliance: Employers failing to constitute an ICC or not adhering to other provisions of this Act shall be punishable with a fine up to ₹50,000. Continued non-compliance can also result in increased penalties and cancellation of licenses.

Monitoring and Implementation

The appropriate Government has to monitor the implementation of the Act and collect data on sexual harassment cases at workplaces. The government should also organize training programs to create awareness about the provisions of the act, especially to those who constitute the LCCs.
The Act empowers the appropriate Government to take necessary actions in order to ensure that the provisions of the law are being followed.

Conclusion

The POSH Act, 2013, is a vital piece of legislation aimed at preventing and addressing sexual harassment at the workplace in India. It outlines responsibilities, rights, and the framework for creating safer working environments for women. It is imperative for both employers and employees to be aware of this Act to uphold the values of respect, dignity, and equality at the workplace.