The Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013

Table of Contents

Introduction

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) represents a watershed moment in Indian labor law. This legislation addresses a critical lacuna in workplace safety, specifically targeting the pervasive issue of sexual harassment faced by women in professional environments.

Enacted against the backdrop of India’s rapidly evolving economic landscape, the POSH Act responds to the surge of women entering the formal workforce. It acknowledges that sexual harassment is not merely an interpersonal issue but a significant barrier to women’s full economic participation and a violation of their fundamental rights.

This article examines the POSH Act’s key provisions, analysing its three-pronged approach of prevention, prohibition, and redressal. By dissecting this pivotal legislation, we aim to provide stakeholders—from HR professionals to legal practitioners—with a comprehensive understanding of their obligations and the evolving landscape of workplace gender dynamics in India.

 

Key Provisions under the POSH Act

  1. Internal Complaints Committee (ICC)

The POSH Act mandates the establishment of an Internal Complaints Committee (ICC) in every workplace with 10 or more employees. 

This committee serves as the primary mechanism for addressing sexual harassment complaints within the organization. The ICC must be led by a senior female employee as the Presiding Officer, ensuring that women’s perspectives are at the forefront of the process. 

  1. Local Complaints Committee (LCC)

Recognizing that not all workplaces may have the capacity to form an ICC, the Act provides for the establishment of Local Complaints Committees (LCC) at the district level. 

These committees are crucial for addressing complaints from smaller workplaces with less than 10 employees or in cases where the complaint is against the employer. 

  1. Filing Complaints

The Act sets clear guidelines for filing complaints of sexual harassment. An aggrieved woman can file a written complaint within three months of the incident. 

This timeframe can be extended if the committee is satisfied that circumstances prevented the woman from filing earlier. 

  1. Conciliation

Before initiating a formal inquiry, the Act allows for a conciliation process if the aggrieved woman requests it. This provision recognizes that in some cases, the parties involved may prefer to resolve the issue through mutual understanding. 

However, to prevent potential misuse, the Act explicitly prohibits monetary settlements as a basis for conciliation. 

  1. Inquiry Process

The Act lays out a structured inquiry process with specific timelines and powers. The committee is given 90 days to complete the inquiry, ensuring that cases are dealt with promptly. 

To facilitate a thorough investigation, the committee is vested with powers similar to a civil court for summoning and examining witnesses. 

Crucially, the Act mandates that both parties must be given a chance to be heard, upholding principles of natural justice. 

  1. Interim Measures

The Act sets clear guidelines for filing complaints of sexual harassment. An aggrieved woman can file a written complaint within three months of the incident. This timeframe can be extended if the committee is satisfied that circumstances prevented the woman from filing earlier. 

Importantly, the Act also makes provisions for cases where the aggrieved woman is unable to file a complaint herself, allowing her legal heir or another prescribed person to do so on her behalf. 

  1. Action on Inquiry Findings

The Act provides clear guidelines on actions to be taken based on the inquiry’s findings. If the allegations are proven, the committee can recommend actions against the respondent as per the organisation’s service rules. 

Additionally, it can recommend a deduction from the respondent’s salary to be paid to the aggrieved woman as compensation.

  1. Confidentiality

Maintaining confidentiality is a crucial aspect of the POSH Act. It prohibits the publication or disclosure of the contents of the complaint, inquiry proceedings, or any related information.

  1. False or Malicious Complaints

While the Act is primarily focused on protecting women from sexual harassment, it also includes provisions to prevent misuse. The Act allows for action against false or malicious complaints. 

  1. Employer’s Duties

The Act places significant responsibilities on employers to create a safe working environment. Employers must provide a safe workplace, display information about sexual harassment consequences and the ICC, organize regular workshops and awareness programs, assist in the complaint and inquiry process, and treat sexual harassment as misconduct under service rules. 

  1. Appeal Process

To ensure fairness and provide recourse against potential misjudgments, the Act includes an appeal process. Persons aggrieved by the committee’s recommendations can appeal to the appropriate authority within 90 days. 

  1. Penalties

To ensure compliance, the Act prescribes penalties for employers who fail to adhere to its provisions. These can include monetary fines, underlining the seriousness with which the law views the responsibility of creating safe workplaces. 

 

Constitution of Complaints Committee under the POSH Act

The Prevention of Sexual Harassment (POSH) Act in India requires the formation of two types of complaints committees to address issues of sexual harassment in the workplace: Internal Complaints Committees (ICC) and Local Complaints Committees (LCC).

Introduction: The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly known as the POSH Act, is a landmark legislation in India aimed at ensuring safe working environments for women. A key feature of this Act is the mandatory establishment of complaints committees to address issues of sexual harassment. This article delves into the constitution of two types of committees: Internal Complaints Committees (ICC) and Local Complaints Committees (LCC).

  1. Internal Complaints Committee (ICC)

  1. Requirement

Every employer of a workplace with 10 or more employees is required to constitute an ICC through a written order. If an organisation has offices or administrative units in different locations, separate ICCs must be formed for each unit.

  1. Composition

The ICC shall consist of the following members, nominated by the employer:

  1. a) Presiding Officer:
  • Must be a woman employed at a senior level in the workplace.
  • If a senior-level woman employee is unavailable, the Presiding Officer can be nominated from other offices or administrative units of the workplace.
  • In case no senior-level woman employee is available in other units, the Presiding Officer can be nominated from any other workplace of the same employer or other department or organisation.
  1. b) Members:
  • At least two members from amongst employees, preferably those committed to the cause of women or with experience in social work or legal knowledge.
  • One external member from non-governmental organizations (NGOs) or associations committed to the cause of women, or a person familiar with issues relating to sexual harassment.

  1. Important stipulations:

  • At least half of the total members nominated must be women.
  • The Presiding Officer and every member of the ICC shall hold office for a period not exceeding three years from the date of their nomination.
  • The external member shall be paid fees or allowances for participating in ICC proceedings, as prescribed by the employer.

  1. Removal of ICC members: 

An ICC member may be removed if they:

  • Contravene confidentiality provisions (Section 16 of the Act)
  • Are convicted or facing inquiry for an offence
  • Are found guilty in disciplinary proceedings
  • Abuse their position, rendering their continuance prejudicial to public interest

Any vacancy created due to removal or other reasons shall be filled by fresh nomination.

  1. Local Complaints Committee (LCC)

  1. Purpose 

LCCs are established to receive complaints of sexual harassment from establishments where the ICC has not been constituted (due to having less than ten workers) or if the complaint is against the employer.

  1. Constitution

  • The appropriate Government may notify a District Magistrate, Additional District Magistrate, Collector, or Deputy Collector as a District Officer for each district.
  • Every District Officer shall constitute an LCC in their district.

  1. Jurisdiction 

The jurisdiction of the LCC extends to the areas of the district where it is constituted.

  1. Composition 

The LCC shall consist of the following members, nominated by the District Officer:

  1. a) Chairperson: An eminent woman in the field of social work, committed to the cause of women.
  2. b) Members:
  • One member from amongst women working in the local administrative units (block, taluka, tehsil, ward, or municipality) in the district.
  • Two members, of whom at least one shall be a woman, nominated from NGOs or associations committed to the cause of women or familiar with issues relating to sexual harassment.
  • The concerned officer dealing with social welfare or women and child development in the district (ex-officio member).

  1. Important stipulations

  • At least one nominee should preferably have a background in law or legal knowledge.
  • At least one nominee shall be a woman belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes, or minority community.
  • The Chairperson and members hold office for a period not exceeding three years.

  1. Removal of LCC members

Similar to ICC members, LCC members can be removed for contraventions, convictions, disciplinary issues, or abuse of position.

  1. Funding

  • The Central Government may provide grants to State Governments for payment of fees or allowances to LCC members.
  • State Governments may set up agencies to manage these funds.
  • The accounts of these agencies are to be maintained and audited as prescribed.

Filing And Handling Complaints under the POSH Act

  1. Who Can File a Complaint?

Any woman who feels she has been subjected to sexual harassment at her workplace can file a complaint. If the woman is unable to file the complaint herself due to physical or mental incapacity, or in the unfortunate event of her death, her legal heir or another designated person can file the complaint on her behalf.

  1. Where to File the Complaint?

Complaints should be filed with either the Internal Committee (IC) or the Local Committee (LC). Most organisations are required to have an Internal Committee. If your workplace doesn’t have one, you can approach the Local Committee in your district.

  1. Time Limit for Filing a Complaint

Generally, you have three months from the date of the incident to file a complaint. If there have been multiple incidents, you have three months from the date of the last incident. However, if you couldn’t file within this timeframe due to certain circumstances, the committee may extend this limit by up to three additional months.

  1. How to File a Complaint?

Complaints should ideally be made in writing. However, if you’re unable to submit a written complaint, the committee members are obligated to provide you with all reasonable assistance to file your complaint in writing.

  1. Conciliation Process

Before starting a formal inquiry, the committee may try to settle the matter through conciliation if the aggrieved woman requests it. It’s important to note that no monetary settlement can be the basis of conciliation. If a settlement is reached, no further inquiry will be conducted.

  1. The Inquiry Process

If conciliation isn’t requested or doesn’t work out, the committee will conduct an inquiry. This inquiry must be completed within 90 days. During this process:

  • Both parties (the complainant and the respondent) will be given a chance to be heard.
  • The committee has powers similar to a civil court in terms of summoning witnesses, requiring document production, and examining people under oath.
  • If the respondent is found guilty, the committee can recommend various actions to the employer, including monetary compensation for the aggrieved woman.

  1. Confidentiality

The Act emphasises maintaining confidentiality throughout the complaint and inquiry process to protect the privacy and dignity of all involved parties.

  1. Protection Against Retaliation

The POSH Act also includes provisions to protect complainants and witnesses from victimisation or retaliation due to their participation in the complaint process.

Inquiry into Complaints under the POSH Act

The Prevention of Sexual Harassment (POSH) Act provides a structured framework for addressing complaints of workplace harassment. A key component of this framework is the inquiry process, which aims to investigate allegations fairly and thoroughly. This section outlines the key aspects of conducting inquiries under the POSH Act.

  1. Initiation of Inquiry

When a complaint is filed, either an Internal Committee (IC) or Local Committee (LC) is tasked with conducting the inquiry. This process begins promptly to ensure timely resolution of the matter.

  1. Interim Measures

During the pendency of the inquiry, the committee may recommend certain interim measures to the employer, such as:

  • Transferring either the complainant or the respondent to a different workplace
  • Granting up to three months of leave to the complainant (in addition to their regular leave entitlement)
  • Implementing other relief measures as prescribed by law

  1. Inquiry Process

The committee conducts a thorough investigation, gathering evidence and hearing testimonies from all relevant parties. This process is conducted with utmost confidentiality to protect the privacy of those involved.

  1. Time Frame

The inquiry should be completed within a reasonable timeframe. The committee is required to submit its report within ten days of completing the inquiry.

  1. Inquiry Findings

Based on the evidence collected, the committee arrives at one of two conclusions: 

  1. a) If the allegation is not proved, the committee recommends that no action is required. 
  2. b) If the allegation is proved, the committee recommends appropriate actions against the respondent.

  1. Recommended Actions

In cases where the allegation is proved, the committee may recommend:

  • Disciplinary action against the respondent as per applicable service rules
  • Deduction from the respondent’s salary to be paid as compensation to the complainant
  • Other appropriate measures to ensure justice for the complainant

  1. Implementation of Recommendations

The employer or District Officer is required to act upon the committee’s recommendations within 60 days of receiving the report.

  1. Provisions for False Complaints

The Act also includes measures to deter false or malicious complaints. If the committee concludes that a complaint was made with malicious intent or false evidence was provided, it may recommend action against the complainant. However, this provision is carefully balanced to ensure that genuine complainants are not discouraged from coming forward.

  1. Compensation Determination

When determining compensation for the complainant, the committee considers various factors, including:

  • Mental trauma and emotional distress caused
  • Career opportunities lost due to the incident
  • Medical expenses incurred
  • The respondent’s financial status
  • Feasibility of payment (lump sum or instalments)

  1. Confidentiality

The Act emphasises maintaining strict confidentiality throughout the inquiry process. Details of the complaint, identities of involved parties, and proceedings are not to be publicised.

  1. Right to Appeal

Both the complainant and the respondent have the right to appeal the committee’s recommendations if they are unsatisfied with the outcome. Appeals must be filed within 90 days of the recommendations being issued.

Duties of Employer under the POSH Act

The Prevention of Sexual Harassment (POSH) Act places significant responsibilities on employers to create and maintain a safe working environment for all employees. This article outlines the key duties that every employer must fulfil to comply with the Act and foster a respectful workplace culture.

  1. Ensuring a Safe Working Environment

Employers are mandated to provide a safe working environment that extends beyond physical safety. This includes protection from sexual harassment by any individual within the workplace, whether colleagues, superiors, subordinates, or even visitors. The employer must take proactive steps to prevent and address any form of sexual harassment.

  1. Displaying Information on Sexual Harassment

To raise awareness and deter potential offenders, employers must prominently display information about the penal consequences of sexual harassment. This should be placed in conspicuous locations throughout the workplace. Additionally, the order constituting the Internal Committee (IC) under Section 4(1) of the Act must also be visibly displayed.

  1. Organizing Awareness Programs and Workshops

Regular workshops and awareness programs are crucial for sensitising employees about the provisions of the POSH Act. Employers must organise these events periodically to ensure that all staff members understand their rights and responsibilities under the Act. Furthermore, orientation programs for IC members must be conducted to equip them with the necessary knowledge and skills to handle complaints effectively.

  1. Facilitating the Complaint and Inquiry Process

Employers are required to provide all necessary facilities to the Internal Committee or Local Committee for addressing complaints and conducting inquiries. This may include providing a private meeting space, access to relevant documents, and any other resources needed to carry out a thorough and fair investigation.

  1. Ensuring Attendance of Involved Parties

The employer must assist in securing the attendance of the respondent (the person against whom the complaint is filed) and witnesses before the relevant committee. This responsibility underscores the employer’s role in ensuring a comprehensive inquiry process.

  1. Providing Relevant Information

When a complaint is filed under Section 9(1) of the Act, employers must make available all pertinent information required by the Internal or Local Committee. This cooperation is essential for a fair and thorough investigation.

  1. Supporting Legal Action

If a woman chooses to file a complaint related to sexual harassment under the Indian Penal Code or any other applicable law, the employer must provide necessary assistance. This support demonstrates the employer’s commitment to justice and employee welfare.

  1. Initiating Action Against Perpetrators

Employers are obligated to initiate action under the Indian Penal Code or other relevant laws against the perpetrator of sexual harassment. If the aggrieved woman desires, this action must be taken even when the perpetrator is not an employee, provided the incident occurred in the workplace.

  1. Treating Sexual Harassment as Misconduct

Sexual harassment must be explicitly recognized as misconduct under the organization’s service rules. Employers are required to initiate appropriate disciplinary action for such misconduct, reinforcing the seriousness of these offences.

  1. Monitoring Timely Reporting

Employers must ensure that the Internal Committee submits its reports in a timely manner. This oversight is crucial for maintaining an efficient and responsive system for addressing sexual harassment complaints.

Conclusion

To address the pervasive issue of sexual harassment in the workplace, a multifaceted approach is necessary. The Prevention of Sexual Harassment (POSH) Act should be strengthened by clarifying its applicability, accountability measures, implementation procedures, and monitoring mechanisms. This refinement would encourage more victims to come forward and report incidents.

Employers and authorities must take proactive steps to create a safe work environment. This includes adopting and implementing best practices for detecting and responding to workplace harassment. By doing so, they can foster a culture of respect and dignity, which in turn enhances workplace productivity.

Prevention is key in combating sexual harassment. Organisations should prioritise awareness initiatives and educational programs that highlight the various forms of harassment, including subtle psychological pressures. These efforts should emphasise the importance of maintaining professional boundaries and respecting colleagues regardless of gender, race, or position.

Ultimately, creating a harassment-free workplace requires ongoing commitment from all levels of an organisation. By promoting a culture of equality, respect, and zero tolerance for harassment, we can work towards eliminating this age-old problem and ensure a safe, productive environment for all employees.

 

    To Top