What is sexual harassment under POSH Act?
Section 2(n)
"Sexual harassment" includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:—
i. physical contact and advances; or
ii. a demand or request for sexual favours; or
iii. making sexually coloured remarks; or
iv. showing pornography; or
v. any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
It also includes:
I implied or explicit promise of preferential treatment in her employment; or
ii. implied or explicit threat of detrimental treatment in her employment; or
iii. implied or explicit threat about her present or future employment status; or
iv. interference with her work or creating an intimidating or offensive or hostile work environment for her; or
v. humiliating treatment likely to affect her health or safety.
Who is protected under the POSH Act?
Section 2 (a)
Aggrieved woman
Aggrieved woman or victim can be any woman, whether or not she is employed at the workplace, who is subjected to sexual harassment at workplace is protected under this Act as long as the act of sexual harassment has occurred within the premises of the workplace.
The victim or victim includes all the women who are visiting the workplace.
When the victim is an employee, the workplace will not only include the enclosed premises of the workplace but will also include any place which the employee is visiting arising out of the course of her employment including the transportation she takes for this purpose.
All the employees regular, temporary, ad hoc, daily wage basis, either employed directly or indirectly or through an agent, including a contractor employed with or without the knowledge of the employer, co-worker, contract worker, probationer, trainee, apprentice, intern, or any other person who is working under the organisation under any other name of designation.
Section 2(f)
For a better understanding of who is protected under this act, it is important to understand the principle and agent relation.
Any work which a woman is doing for or on the behalf of the organisation she is employed at or which she would not have been doing if she were not an employee, will attract protection of this Act.
The act also protects the female employees engaged in the domestic and unorganised sector, where they can file a complaint to Local Committee instituted at every district level by government.
What is Internal Committee/ Internal Complaints Committee?
Section 4
Internal Complains Committee is the legal redressal to look into the complaints of sexual harassment at workplace.
The composition of ICC is:
-It must have a Presiding Officer, who shall be a woman employee at senior level.
In case there is no woman employed at senior level, The Presiding officer shall be nominated from other offices or administrative units of the same workplace.
Ex- If the office located in Delhi does not have a woman employed at senior level, the presiding officer can be nominated from a women employed at Mumbai office.
At least two members from amongst the employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge.
One member from NGO or association or any person who is familiar with the issues related to sexual harassment.
At least one-half members of the committee shall be women.
The presiding officer and other members shall not hold office for more than 3 years from the date of nomination.
The member appointed from NGO, association or person familiar with the issues of sexual harassment shall be paid fees or allowances for holding the proceedings of the Internal Committee as prescribed by them.
What is Local Complaints Committee?
Section 7
Every district officer shall constitute a Local Committee in every district to look into the complaints of sexual harassment where the ICC has not been constituted due to having less than 10 employees or where the complaint is against the employer himself.
The government shall designate one nodal officer in every block, taluka, and tehsil in the rural or tribal area and ward or municipality in the urban area, to receive complaints and forward the same to the concerned Local Complaints Committee within a period of seven days. This person will be called the District office who shall exercise powers and discharge functions of this Act.
Composition of Local Complaints Committee
A chairperson to be nominated from amongst the women working in block, taluka or tehsil or ward or municipality in the district.
Two Members, of whom at least one shall be a woman, to be nominated from amongst such non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment, which may be prescribed.
-At least one of the members must have a background in law or legal knowledge.
-At least one of the nominees shall be a woman belonging to the Scheduled Castes or the Scheduled Tribes or the Other Backward Classes or minority community notified by the Central Government.
-The concerned officer dealing with the social welfare or women and child development in the district, shall be a member ex officio.
The presiding officer and other members shall not hold office for more than 3 years from the date of nomination.
The member appointed from NGO, association or person familiar with the issues of sexual harassment shall be paid fees or allowances for holding the proceedings of the Local Committee.
Who is legally bound to constitute an ICC?
Section 2(o)
All the workplace/employer having more than 10 employees must constitute an ICC at workplace.
Any department, organisation, undertaking, establishment, enterprise, institution, office whether funded directly or indirectly by government or private sector organisation or a private venture.
All the societies, trusts, non-governmental organisations.
All the units or service providers carrying on commercial activities.
All the units, branches, administrative units or offices, divisional or sub-divisional units under the organisation.
Hospitals and nursing homes
Any sports institute, stadium, sports complex or competition or games venue, or residence
A dwelling place or a house.
What are duties of the employer & ICC?
Section 19
To provide a safe working environment at the workplace which shall include safety from the persons coming into contact in any way at the workplace.
To display at workplace, the penal consequences of sexual harassments.
To organise workshops and awareness programs at regular intervals for sensitising the employees with the provisions of the Act and orientation programs for the members of the Internal Committee.
To provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry.
Assist in securing the attendance of offender and witnesses before the Internal Committee or the Local Committee.
To assist the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law.
Initiate action, under the Indian Penal Code or any other law, against the perpetrator, or if the victim so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place.
To treat sexual harassment as misconduct under the service rules and initiate action for such misconduct.
To monitor the timely submission of reports by the Internal Committee.
Protection of identity of the woman
Section 16 & 17
The ICC must ensure that the identity of the victim must be protected and no information regarding the complaint must be revealed.
Failing to do so may attract legal actions not only under this act but under other laws in force as well.
What is the Penalty for not complying with the provisions of this Act?
Section 26
If the employer fails to constitute an ICC or fails to comply with the provisions of this Act or:
ICC fails to organise awareness programs and workshops from time to time
ICC fails to look into the complaint, holds an inquiry against the complaint.
ICC fails to send the report of the inquiry, whether found guilty of sexual harassment, whether found not guilty, whether it deems fit that no action should be taken, whether on reports of ICC finds out that the complaint is filed maliciously to the employer.
ICC fails to protect the identity of the complainant.
ICC fails to take action against the malicious complaint
Employer fails to include in its annual report the information and actions taken by ICC in that financial year.
Shall be punishable with a fine up to 50,000 Rs.
Further, on subsequent complaints the penalty may result in cancellation, of his licence or withdrawal, or non-renewal, or approval, or cancellation of the registration, as the case may be, by the Government or local authority required for carrying on his business or activity.
Or failing to comply with the provisions of the act, the employer can be punished with twice the punishment that was given the first time.
ICC failing to comply
If any of the members fails to protect the identity of the victim, or has been convicted of any offense under any law in force, or has been convicted of disciplinary actions or any disciplinary proceedings are pending against her/him, if any member has abused the power.
Then such member shall be removed from ICC immediately and a new member must be appointed by employer.
Annual report
Section 21
The ICC must send an annual report containing all the complaints and reports of inquiry and all the actions taken on the complaint to the employer and district officer.
The district officer must forward the report to the state government.
Contact us to constitute your ICC today at workplace.
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