Powers and functions of the dispute resolution mechanism under POSH

Act

Introduction
India is rapidly progressing in its developmental goals and more women are joining the
workforce, resulting in the sexual harassment of women at the workplace is becoming
increasingly prevalent in India. Sexual harassment at the workplace is an extension of
violence in everyday life and is discriminatory and exploitative, as it affects women’s right to
life and livelihood.
These incidences of sexual harassment results in violation of the fundamental rights of a
woman to equality under Articles 14 and 15 of the Constitution of India (hereinafter known
as “the Constitution”) and also affecting her right to live with dignity as envisaged under
Article 21 of the Constitution. Women all around the world have faced instances of sexual
harassment, which may include sexual advances, and another verbal or physical harassment
of a sexual nature, and the same is required to be dealt with proper care as a safe and secure
workplace is, therefore, a woman’s legal right.

In order to curb these acts/ incidents of sexual harassment at the workplace, the Ministry of
Women and Child Development, Government of India, enacted the first codified legislation
specifically dealing with the issues of workplace sexual harassment, i.e. “The Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013” (hereinafter referred to as the “POSH Act”), which came into effect on December 09,
2013. Subsequently, the government of India also notified the rules under the POSH Act
titled “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal Rules, 2013” (hereinafter referred to as the “POSH Rules”). The POSH Act along
with POSH Rules, collectively referred to as the “POSH Law”, aims to foster a safe and
secure working environment for women by preventing, prohibiting and redressing the
instances of sexual harassment at workplaces in India.

Thereafter in 2013 itself, an amendment has been promulgated by way of the Criminal Law
(Amendment) Act, 2013 post Nirbhaya rape outrage, which has criminalized the offences
such as sexual harassment, stalking, and voyeurism.
Important definitions
Following are some of the important definitions given under POSH Act.
A. Sexual Harassment” includes any one or more of the following unwelcome acts or
behaviour (whether directly or by implication) namely:

         Physical contact and advances; or

         A demand or request for sexual favours; or
         Making sexually coloured remarks; or
         Showing pornography; or
         Any other unwelcome physical, verbal, or non-verbal conduct of sexual nature

B. The Act introduces the concept of an ‘extended workplace’. In addition to the office
of the employer or employee, any place visited by the employee arising out of or
during the course of employment, including transportation provided by the employer
for the purpose of commuting to and from the place of employment, will also
constitute a workplace. The most commonly seen situations of an extended workplace
are those scenarios where an official event is taking place in a social setting, but
endorsed or financed by the employer, in which case, such events will also be deemed
a workplace under POSH Law.

C. “Employee7” under the POSH Act is fairly wide to cover regular, temporary, ad hoc
employees, individuals engaged on a daily wage basis, either directly or through an
agent, contract laborer’s, co-workers, probationers, trainees, and apprentices, with or
without the knowledge of the principal employer, whether for remuneration or not,
working on a voluntary basis or otherwise, whether the terms of employment are
express or implied.

Internal complaints committee and Local committee

An important feature of the POSH Law that it envisages the setting up of a grievance
redressal forum, i.e., complaints committee. The Act provides for two types of complaints
mechanism: Internal Committee8 (“IC”) and Local Committee9 (“LC”). The IC and LC have
the same powers as vested in a civil court under the Code of Civil Procedure, 1908. All the
complaints committees shall have at least half of the total members so nominated of women.
The members of the complaint committees will hold their position for up to 3 years from the
date of their nomination or appointment.

 IC: Every employer10 is responsible to constitute an IC at each office or branch, of an

organization employing 10 or more employees, to hear and redress grievances
pertaining to sexual harassment. Failure to set up an IC has led to the imposition of
fine as it is a non-compliance under the POSH Law. The IC will be composed of the
following 4 members:

i. Presiding Officer: a woman employed at a senior level at the

workplace from amongst the employees.
ii. 2 members (minimum): From amongst employees committed to the cause of

women/ having legal knowledge/ experience in

social work
iii. External member: From amongst NGOs/associations committed to the
cause of women or a person familiar with the issues

relating to sexual harassment

 LC: At the district level, the government is required to set up an LC to investigate and
redress the complaints pertaining to sexual harassment from the unorganized sector or
establishments where IC has not been constituted on account of the establishment
having less than 10 employees or in case the complaint is against the employer or
from domestic workers. The LC will be composed of the following 5 members:

i. Chairperson: Nominated from amongst the eminent women in the

field of social work and committed to the cause of
women.
ii. Local woman: One of the members to be nominated from amongst
the women working in the block, taluka, tehsil or
ward or municipality in the district.
 iii. 2 NGO members*: From amongst  NGOs/associations/ persons
committed to the cause of women or familiar with
the issues of sexual harassment, provided that:

 At least one must be a woman.

 At least one must have a background of law
or have legal knowledge

iv. Ex-officio member: The concerned officer dealing with social welfare or

women and child development in the district

 

*one of the nominees shall be a woman belonging to the scheduled castes/ scheduled tribes/
other backward classes or minority community notified by the central government, from time
to time.

Powers of the Internal Complaints Committee

The POSH Act prescribes the following punishments that may be imposed by an employer on
an employee for indulging in an act of sexual harassment: i. punishment prescribed under the
service rules of the organization; ii. if the organization does not have service rules,
disciplinary action including written apology, warning, reprimand, censure, withholding of
promotion, withholding of pay rise or increments, terminating the respondent from service,
undergoing a counselling session, or carrying out community service; and iii. deduction of
compensation payable to the aggrieved woman from the wages of the respondent.25 The
POSH Act also envisages payment of compensation to the aggrieved woman. The
compensation payable shall be determined based on: 25. Section 13 of the Prevention of
Workplace Sexual Harassment Act i. the mental trauma, pain, suffering and emotional
distress caused to the aggrieved employee; ii. the loss in career opportunity due to the
incident of sexual harassment; iii. medical expenses incurred by the victim for physical/
psychiatric treatment; iv. the income and status of the alleged perpetrator; and v. feasibility of
such payment in lump sum or in installments.26 In the event that the respondent fails to pay
the aforesaid sum, IC may forward the order for recovery of the sum as an arrear of land
revenue to the concerned District Officer.
Power of Internal Complaint Committee in case of Malicious Complaints

In order to ensure that the protections envisaged under the POSH Act are not misused,
provisions for action against “false or malicious” complainants have been included in the
statute. As per the POSH Act, if the IC/LC concludes that the allegation made by the
complainant is false or malicious or the complaint has been made knowing it to be untrue or
forged or misleading information has been provided during the inquiry, disciplinary action in
accordance with the service rules of the organisation can be taken against such complainant.
Where the organisation does not have service rules, the statute provides that disciplinary
action such as written apology, warning, reprimand, censure, withholding of promotion,
withholding of pay rise or increments, terminating the respondent from service, undergoing a
counselling session, or carrying out community service may be taken. The POSH Act further
clarifies that the mere inability to substantiate a complaint or provide adequate proof need not
mean that the complaint is false or malicious.

Forwarding complaint to police

The Internal Complaint Committee has been empowered to forward the complaints to the
police in two circumstances which are as follows: -
1. For registration of a case under section 509 of the Indian Penal Code(2) or other
provisions of the criminal law, within the period of seven days.
2. When a settlement is agreed upon between the parties and the respondent does not
comply with the condition(s) of the settlement, the Committee may forward the
complaint to the police.

Interim Actions
At the request of the complainant, the IC or the LC (as the case maybe) may recommend to
the employer to provide interim measures such as: i. transfer of the aggrieved woman or the
respondent to any other workplace; ii. granting leave to the aggrieved woman up to a period
of 3 months in addition to her regular statutory/ contractual leave entitlement; iii. restrain the
respondent from reporting on the work performance of the aggrieved woman or writing her
confidential report, which duties may be transferred to other employees.
Duties of the Internal Complaints Committee

The Committee has a major role to play at the workplace where it has been constituted. A
general list of duties of the Committee is enumerated as follows: -

1. Implementation of the Anti–Sexual Harassment Policy at the workplace

2. Submit an Annual Report

3. Create awareness at the workplace by way of documents, notices, workshops,

seminars, etc.

4. Publicize the policy framework

5. Provide a safe and accessible mechanism of complaint to the victims

6. Initiation of inquiry at the earliest

7. Redress the complaints in the best possible manner

8. Provide for interim relief

9. Provide an opportunity for conciliation

10. Follow the principles of natural justice at all stages of the proceedings

11. Forward the complaint to the police, where required

12. Submit recommendations along with the inquiry report

13. Maintain confidentiality in regard to the proceedings taking place before the
Committee

14. The employer must include details in the report like number of case files at their
disposal.

Conclusion

The POSH Act prescribes that failure by an employer to constitute an ICC is an offence
punishable with fine for an amount of up to Rupees Fifty Thousand. Further, an employer
convicted for the same offence at the second instance may be punishable with a fine for twice
such amount, as well as be liable to cancellation or non-renewal of its business licenses,
registrations or approvals by the government or local authorities.

However, more than the above penalties prescribed under law, an organization should be
concerned about ensuing bad press associated with sexual harassment charges involving its
employees, especially in this day and age of proliferation of technology and social media.
Such bad press has the potential to severely dent an organization tangibly (for instance
through termination of associations and blacklisting from future partnerships) as well as
intangibly (such as loss of reputation as an employer in the job market, as well as an inability
to attract and retain talent).

While ensuring that it complies with the POSH Act in letter and spirit, an employer should
prioritize creating a supportive and non-toxic work environment through various enabling
mechanisms such as holding periodical awareness and sensitization programmes. Senior
executives should preferably take the lead in participating in such initiatives, to visibly
demonstrate to all employees that the commitment to establishing a safe working
environment runs deeper than mere lip service, and is a central tenet of the organization's
DNA.

Bibliography

 Labour and industrial laws by S.N. Mishra.

 Research paper on ‘Prevention of Sexual Harassment at the Workplace (POSH)’ by
Nishith Desai.
 www.mondaq.com
 acumenjuris.com
 www.iitk.ac.in
 blog.ipleaders.in
 myadvo.in
 Legalservicesindia.in