“I was upset. And I was humiliated. And I was embarrassed… I couldn’t imagine I could get another job. I really didn’t feel like I had a choice … I just didn’t even have a conception that you would march yourself into somebody’s office and ask that this stop. So I just kept showing up…If we’re not having these conversations, those old gender expectations and beliefs that have in part kept us from moving forward professionally will continue on, unchallenged.”
This is the statement that Sallie Krawcheck put out while talking about her experience of sexual harassment at workplaces which resonated with a lot of working females across industries and professions.
Every year India witnesses a rise in the number of workplace harassment cases owing to the lesser awareness of the harassment laws. The main legislation that deals with this issue is the ‘Sexual Harassment of Women at Workplace (Prevention, Prohibitions and Redressal) Act, 2013’ better known as POSH Act. Prior to this, all the workplace harassment cases were dealt under the Supreme Court guidelines that were laid down in the case of Vishaka Vs. State of Rajasthan[1] (popularly known as 'Vishakha Guidelines').
The Act is a step forward towards the realisation of the woman’s right to gender equality, right to life and liberty, and a safer working environment in both the public and private spheres. Further, the term ‘workplace’ under Section 2(o) of the Act also includes transportation, sports institutions, hospitals, dwelling, any place visited by the employee arising out of or during the course of employment and the entire unorganised sector apart from public and private sector organisations.
The various facets of sexual harassment according to Section 2(n) of the Act includes unwelcomed acts and behaviours such as-
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
any other unwelcome physical, verbal, or non-verbal conduct of sexual nature.
The Supreme Court explained that “sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such conduct by the female employee was capable of being used for affecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile work environment for her.” [2]
Obligations of a Company
1. The first and foremost obligation is that of providing a safe working environment for women.
2. One of the requirements under the Act is the setting up of a mechanism by the name of Internal Complaints Committee in every organisation that has more than 10 members. Further, where the offices or administrative units of a workplace is located at different places, the Internal Complaints Committee should be constituted at each one of these units, respectively.
The Committee would comprise of the following members to be nominated by the employer-
Presiding Officer, who should be a woman employed at the senior level.
Two members from the employees who are preferably committed to the cause of women or have experience in social work or have legal knowledge.
One member from the NGO’s or associations which are committed to the cause of women or a person who is familiar to the issues relating to sexual harassment. This nomination of an external member will minimise the biasness and will make sure that injustice is not caused either to the Complainant or the person against who the complaint is made
The term of these members shall not exceed the period of three years. Another point to be noted while nominating members for the Internal Complaints Committee should be that at least one-half of the total members should be women.
3. Further the company has to display the penal consequences of sexual harassment at workplace along with the contact details of the members of the Internal Complaints Committee at a conspicuous place at the office.
4. Regular workshops and awareness programs to be organised for the employees for sensitising them with the provisions of the POSH Act and also holding orientation programs for the members of the Internal Complaints Committee.
5. Aid the aggrieved woman while filing a complaint if she chooses to file a complaint in relation to the offence under the Indian Penal Code or any other Act in force at that time.
6. There is nothing under POSH Act or rules framed thereunder which permits the internal committee to suspend an accused while the investigation is underway. If the aggrieved woman so requests, it is the aggrieved woman who can be granted additional leave upto 3 months and not the accused. If the accused is in a position to tamper evidence or intimidate witnesses, the accused can be transferred to a different location or measures can be taken by the employer so that the investigation process is not hindered.
For establishments that have less than 10 members can report their complaints related to sexual harassment at workplaces to the Local Complaints Committee that will be set up by the Government for every district. The Local Complaints Committee will also consist of a female Chairperson who will be nominated from amongst the eminent women in the field of social work and committed to the cause of women. One member to be nominated from amongst the women working in block, taluka or tehsil or ward or municipality in the district and 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, provided that one of them should preferably have background in law or some legal knowledge.
Further, 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. The concerned officer dealing with the social welfare or women and child development in the district, shall be a member ex officio and in case of Local Complaints Committee too, the term of all the members should not exceed the period of three years.
Failure to comply with the provisions of the Act will lead to a fine which may extend to fifty thousand rupees and a repeated non- compliance for the same offence will lead the employer facing twice the punishment that might have been imposed on the first conviction and the 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.
Process of making the complaint
Section 9 of the POSH Act outlines the way in which the complaint is to be made. Any aggrieved woman can make a complaint to either the Internal Complaints Committee (ICC) or the Local Complaints Committee (LCC) within a period of three month from the day of the last act of sexual harassment incident. The assistance provided by the ICC or the LCC for making the complaint to the aggrieved woman should be free of any cost.
Ideally, the complaint should be made in writing, and where such complaint cannot be made in writing, the Presiding Officer or any member of the Internal Committee or the Chairperson or any member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing. The complaint should mention the date, time, and place where the incident took place and should also include the names of the witnesses, if any.
Further, if the Internal Complaints Committee or the Local Complaints Committee, as the case may be, is satisfied that the circumstances were such which prevented the woman from filing a complaint within the three months’ time period stipulated under the Act, may extend it by three months more.
In cases where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person, as may be prescribed, may make a complaint under Section 9 of the Act as well.
Alternative option of Conciliation
The Act under Section 10 provides an option of Conciliation at the request of the aggrieved woman, provided that it is not done on any sort of monetary settlement. The Internal Committee or the Local Committee, as the case may be, shall provide the copies of the settlement to the aggrieved woman and the respondent. Additionally, no further inquiry shall be conducted by the Internal Committee or the Local Committee, as the case may be.
Where settlement has arrived, the Internal Committee or the Local Committee, as the case may be, shall record the settlement so arrived and forward the same to the employer or the District Officer to take action as specified in the recommendation.
Process of inquiry into complaint
The Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent, and where no such rules exist, in such manner as may be prescribed or in case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under Section 509 of the Indian Penal Code (45 of 1860), and any other relevant provisions of the said Code where applicable.
The Madras High Court held that even in cases where the allegations of harassment appeared baseless, the proper course would be to refer the matter to the complaints committee. Complaints of sexual harassment, which is serious in nature, cannot be brushed aside only in technicalities, namely, as belated and an after-thought - Thus, the court held that "Serious complaint cannot be brushed aside only on technicalities."[3]
Further, if any settlement has been reached under the provisions of Section 10 and any term or condition of the settlement has not been complied with by the respondent, the Internal Committee or the Local Committee shall proceed to make an inquiry into the complaint or, as the case may be, forward the complaint to the police.
Provided further that where both the parties are employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee.
The Internal Complaints Committee and the Local Complaints Committee for the purpose of making inquiries under Section 11 of the POSH Act shall have the same powers as are vested in a civil court the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely:
(a) summoning and enforcing the attendance of any person and examining him on oath.
(b) requiring the discovery and production of documents, and
(c) any other matter which may be prescribed.
The inquiry should be completed within a period of 90 days and the concerned committee should provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and also to the concerned parties.
The Patna High Court held that the disciplinary authority can dismiss an employee from the services once the sexual harassment charges are proven.[4]
The entire process right from the initiation of the complaint to the inquiry and the consequential recommendations of the Internal Complaints Committee or the Local Complaints Committee to the steps taken by the employer, everything should be kept confidential including the identity and addresses of the aggrieved woman, respondent and witnesses.
If any person is aggrieved by the recommendations made or is aggrieved by the non-implementation of the recommendations, then that person can file for an appeal within the period of 90 days to the court or tribunal in accordance with the provisions of the service rules applicable or in the manner as may be prescribed in absence of such service rules.
Cases of False Complaints
Section 14 of the POSH Act deals with the punishment for cases of false and malicious complaints. When the concerned committee arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document, it may recommend to the employer or the District Officer, as the case may be, to take action against the woman or the person who has made the complaint.
Though the benefit of this section would only be feasible if the Internals Complaints Committee or the Local Complaints Committee comes to the conclusion that the complaint was in fact made with malicious intent, thus even if one’s innocence is the driving force behind stonewalling the investigation process, it is advisable to comply with the requirements and cooperate fully with the inquiry process of the committee.
The Hon'ble High Court of Madras observed that “Though the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is intended to have equal standing for women in the workplace and to have a cordial workplace in which their dignity and self-respect are protected, it cannot be allowed to be misused by women to harass someone with exaggerated or non-existent allegations.”[5]
In another recent case the Delhi High Court dismissed the petition for its 'lack of merit' and ordered the costs of Rs. 50,000/- on the petitioner for filing a false complaint and misusing the provisions of the POSH Act. The Court also granted liberty to the respondent-ESI Corporation to initiate appropriate action against the petitioner for the same.[6]
Though a mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant under this section, it is necessary that the malicious intent of the complainant is proved.
Conclusion
Thus, it can be safely concluded that the main objective of the Act is, firstly, the prevention of sexual harassment at workplaces, and secondly, if they do take place then ensuring that the victim gets proper redressal.
The Act is in unison with the spirit of Articles 14, 15, and 21 of the Constitution of India. With women constituting almost half of the workforce of the country, a legislation that ensures safe working environment for them was highly imperative. Ensuring that the working environment is free from discrimination and violence is core for realizing quality work and the POSH Act makes the realisation of such work environment possible.
The considerable escalation in the number of cases that have been reported from the time when the legislation first came into effect reflects the greater awareness with respect to the Act. Even though the social stigma related to such issues might make women feel that they are better off without raising their voices about such acts but proper sensitisation, awareness and having a safe work environment will go a long way at making them feel comfortable to fight this evil. Regular workshops and the Company’s strict compliance with the provisions of the Act will make the constant quandary of the victim of reporting or not reporting the sexual harassment incident easier.
However, the work environment of the woman should induce the notion that any sort of harassment complaint could backfire on the person making it, otherwise, it will render the intention and objective of the POSH Act as an unattainable goal. Thus, as was rightly pointed by the Bombay High Court, "employers need to genuinely be concerned with the safety of women at the workplace rather than staging a farce of compliance under the POSH Act."[7]
[1] (1997) 6 SCC 241.
[2] Apparel Export Promotion Council vs A.K. Chopra, AIR 1995 SC 625. [3] K.Narmatha Vs. Home Secretary (2011)1MLJ495. [4] Mohan Kumar Singh v. Chief Manager (HRD) Central Bank of India, (2017 SCC OnLine Pat 2483). [5] Union of India Vs. Reema Srinivasan Iyengar, WP Nos. 10689, 24290 and 4339 of 2019. [6] Anita Suresh vs Union of India & Others, W.P (C) 5114/2015. [7] Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University (2014 SCC OnLine Bom 814).