All about POSH Act

We compliance officers usually calls POSH Act, but there is no such act, it is the nick name of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Introduction

It was basically enacted for protection against sexual harassment of Women at workplace and also for the prevention and redressal of complaints of sexual harassment and connected matters. 

So, this act is only for complaints filing and protection against Sexual harassment and not any other type of harassment.

This act is only for Women and not for men, Men can't be able to lodge a complaint under this Act.

This Act also tells about workplace, any kind of sexual harassment done within the premises of office or workplace is under the purview of  this act. Any kind of general sexual harassment and related matter is covered under Sec. 354 & 354A of Indian Penal Code.

One more important point to note here that the Act does not use the word Employee or Women Employee (in the heading of the Act) that means this Act is open for all kind of sexual harassment and related matters done within the workplace with any girl/ women. Whether she is employee, temporary employee, apprentice or even any-one who visits the workplace for the very first time and is sexually harassed or was tried to seduce etc. So to summarize this act is not limited to just employees even, it has a broader perspective to cover all or any type of sexually harassment cases within the workplace jurisdiction.

Applicability

This Act is applicable to every workplace, establishment, company or organization irrespective of the fact that it employs 10 or more employees (full time, part time, interns or consultants included) and also irrespective of its location or nature of industry, both government or private etc.

These laws are applicable upon every workplace, establishment, company, and organization, inclusive of MNCs, firms, shops, restaurants, etc.

Compliances under Posh Act:

1. Internal Complaints Committee (ICC): Each organisation with more than 10 employees (not 10 women employees) is required to form an Internal Complaints Committee chaired by a female presiding officer.

2. Policy: Formulation of an internal POSH policy for the prevention and redressal of sexual harassment at workplaces.

Employers/District Officers are responsible for complying with prohibition, prevention and redressal of workplace sexual harassment. In practice, this means having a policy that:

(a) prohibits unwelcome behavior that constitutes workplace sexual harassment;

(b) champions prevention of workplace sexual harassment through orientation, awareness and sensitization sessions; and

(c) provides a detailed framework for redress.

3. Training Programme: Orientation and training programme are also required to be carried out by the organisation.

Employers/ District Officers have a legal responsibility to:

(a). Effectively communicate a policy that prohibits unwelcome behaviour that constitutes workplace sexual harassment, and provides a detailed framework for prevention, and redress processes.

(b). Carry out awareness and orientation for all employees.

(c). Create forums for dialogue i.e. Panchayati Raj Institutions, Gram Sabhas, Women’s Groups, Urban Local Bodies or like bodies, as appropriate.

(d). Ensure capacity and skill building of Complaints Committees.

(e). Widely publicize names and contact details of Complaints Committee members.

4. Annual Report: The organizations are also required to file an annual report with the information of the number of sexual harassment complaints received in a year, the number of complaints disposed of in a year, cases pending for more than 90 days, etc.

As per Prevention of Sexual Harassment Act, 2013, there are 2 reports to be submitted by the employer:

(a). 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.

(b). 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.

Applicability of posh act where there is no women employee in the organisation

Many people have caught in a confusion that POSH act is for the safety of women, so if my organisation does not have any women employee, so it will not be applicable to my organisation. Then for them, it's the time to revise the POSH Act.

POSH Act was enacted for the safety of women and not for women employee. This act extends to each and every organisation or workplace in India, even to all the organisations employing men and only men. 

This is so because our judiciary wants to make workplaces free from all these sexually harassment and to give a confident environment to women (not women employee). So there may be cases that a girl may visit any workplace for the first time say for delivering pizza or to visit someone or any other cases. If she was sexually harassed then she can also complain under POSH Act. 

Conclusion: POSH Act is applicable to that organisation also where there is NO women employee.

But wait, if the POSH Act is applicable to the organisation, then How can they constitute ICC, they would require minimum 2 women members, now the question is where do these women members will come from. Act is still not clear on this matter. 

So, it is upto the organisation to constitute ICC as per their discretion.     

Reporting under Directors Report:

MCA's Notification dated July 31, 2018, amended the Companies (Accounts) Rules 2014.

By this amendment, it is now mandatory to disclose that the company has implemented the provisions of the Sexual Harassment Act.

Further making compulsory for a company to make a statement in the Director’s Report that it has complied with the provisions regarding the constitution of the Internal Complaints Committee (ICC).

Penal provisions that ensue in case of non-disclosure under Section 134 of the Companies Act will now be levied in the matters of non-disclosure of the implementation of the Sexual Harassment Act as well.

DISTRICT OFFICER (DO)

Who is District Officer under posh act?

State Governments will notify a District Magistrate/Additional District Magistrate/ Collector/ Deputy Collector as a District Officer at the local level. The District Officer will be responsible for carrying out the powers and functions under the Act at the district levels (including every block, taluka, tehsil, ward, and municipality).

Section 21 – Internal Committee to submit annual report:

As per the Act – “(I) The Internal Committee or the Local Committee shall in each calendar year prepare, in such form and when may be prescribed, an annual report and submit the same to the employer and the District Officer.

The District Officer will forward a brief report on the annual reports to the appropriate State Government. Such reports must include the following information:

1. No. of complaints received;

2. No. of complaints disposed of;

3. No. of cases pending for more than 90 days;

4. No. of workshops/awareness programmes carried out;

5. Nature of action taken by the employer/DO;

The Report of ICC will be forwarded to the DO through the employer.

Section 22 – Employer to include information in the Annual report

As per the Act – “The employer shall include in its report the number of cases filed, if any, and their disposal under this Act in the annual report of his organisation or where no such report is required to be prepared, intimate such number of cases, if any, to the District Officer.”

The latest Director’s Report submitted under the Companies Act has a section to capture the compliance to the PoSH Act, 2013. This report is filed along with the Annual returns to the Registrar of companies.

Penalty Provisions:

An employer can be subjected to a penalty of up to INR 50,000 for:

Failure to constitute Internal Complaints Committee

Failure to act upon recommendations of the Complaints Committee; or

Failure to file an annual report to the District Officer where required; or

Contravening or attempting to contravene or abetting contravention of the Act or Rules.

Where an employer repeats a breach under the Act, they shall be subject to:

Twice the punishment or higher punishment if prescribed under any other law for the same offence.

Cancellation/Withdrawal/Non-renewal of registration/license required for carrying on business or activities.

Working Procedures to be followed when a complaint is received under POSH Act and how to resolve the cases/matters under POSH Act.

This Act provides for setting up of ICC by the employer at every office of the organisation or institution, having more than 10 employees, to hear and redress complaints pertaining to sexual harassment. Where the number of employees are less than 10, the Act provide for setting up of Local Committee (LC) in every district by the District Officer. So the compliance is mandatory irrespective of fact of any number of employees working in the establishment.

The committee while inquiring into such complaint shall have the same power as vested in a civil court. The Delhi High Court in its judgment in Ruchika Singh Chhabra vs M/s Air France India and Anr. ...directed that the ICC should be constituted in strict compliance with the requirements under law.

An aggrieved woman can file a written complaint to ICC/LC from three months from the date of the incident and in case of series of such incidents within three months from the last such incident. However, any delay in filing the complaint can be condoned by the committee upto further three months. In case of physical or mental incapability of the aggrieved woman, her legal heirs or such other person as described in Rule 6 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 ("the Rules") may make a complaint.

On receiving the complaint by the committee, before initiating an inquiry, may (not shall) take steps to settle the matter between her and the respondent through conciliation and when a settlement is arrived no further inquiry is conducted. If the conciliation fails or any term of the settlement arrived at has not been complied with by the respondent, the committee shall proceed further with the inquiry.

In case of a domestic worker, the Local Committee (LC) shall, if prima facie case exists, forward the complaint to the police, within a period of seven days for registering the case under Section 509 of Indian Penal Code or any other relevant provisions of the said Code where applicable.

Where both the parties are employees, the principle of natural justice is followed and both the parties are heard and opportunity is given to make representations against the findings of the committee. For the purpose of making an inquiry, the committee shall have the same powers as are vested in a civil court. The committee has to complete the inquiry within a period of 90 days. The committee can give certain interim reliefs to the aggrieved woman during the pendency of the inquiry.

The committee within 10 days after completion of the inquiry shall provide the report of its findings to the employer/District Officer and the concerned parties. When the allegation against the respondent has been proved the committee shall recommend the employer/District Officer to take action for sexual harassment as misconduct in accordance with provisions of service rules or where no such rules have been made, as prescribed in Rule 9 of the Rules and to pay such sum to the aggrieved woman as it consider appropriate, in accordance with the provisions of section 15, from the salary of the respondent. The employer/District Officer SHALL act upon the recommendations within 60 days.

In case of filing of false or malicious complaint or false evidence the committee may recommend to the employer or District Officer to take action in accordance with the provisions of service rules or where no such service rules exist, in such manner as prescribed in Rule 10 of the Rules.

An appeal can be filed against the recommendations made by the committee before the court or tribunal, within 90 days from the recommendations, in accordance with service rules and in absence of service rules, to the Appellate Authority under Section 2 of the Industrial Employment (Standing Orders) Act, 1946.

There is a prohibition on publication of identity of the aggrieved woman, respondent, witnesses, contents of the complaint, inquiry proceedings or recommendations of the committee, except information regarding the justice secured to any victim of sexual harassment. In contravention of Section 16 of the Act, such person shall be liable for penalty in accordance with service rules and in absence of service rules, in accordance with Rule 12.

The Act lays down certain duties of the employer and District Officer under Section 19 and 20 respectively such as creating awareness on sexual harassment at workplace, sensitize the employees, assist the complaints committee in conducting the inquiry, act upon recommendations of the committee, monitor timely submissions of reports of the committee etc.

The non compliance of the provisions of the Act by the employer may result in fine which may extend to fifty thousand rupees and can also lead to cancellation of his license or withdrawal, or non-renewal, or approval, or cancellation of the registration, as the case may be.

Even though the Act is in force since 2013, the awareness regarding consequences of sexual harassment and its redressal against the same is limited. The effective implementation of POSH Act not only requires creating an environment where women can speak up about their grievances without fear and get justice but sensitization of men towards treatment of women at workplace is equally necessary.

Need Checklist for the compliance of POSH in tabular form Link 

Want to know more about POSH 

Do visit the FAQs on POSH Act 

even more you can read the Handbook issued by the Ministry of Women and Child Development means issued by the Government of India. Link for handbook