Introduction

A woman's fundamental rights to equality and life, as protected by Articles 14, 15, and 21 of the Indian Constitution ("Constitution"), are violated by workplace sexual harassment, a type of gender discrimination. In addition to making the workplace unfriendly and insecure for women, sexual harassment at work hinders their ability to perform in the cutthroat world of today. It not only hinders their productivity at work but also has a negative impact on their socio-economic advancement and causes them to suffer physically and psychologically.

The Ministry of Women and Child Development of India passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (also known as the "POSH Act") in 2013, which is the first legislation addressing the problem of sexual harassment in the workplace and seeks to protect women from sexual harassment and to establish a safe and supportive work environment for them.

FAQs:

1. How can the ICC (Internal Complaints Committee) be constituted,and what are its power under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013?

Section 4 of the POSH Act, 2013 calls for the formation of an internal complaints committee in the workplace by every employer. If the offices or administrative units of the workplace are located at varied locations, then ICC shall be constituted at each unit or offices.

Responsibility: The ICC is the only body that is tasked with conducting an impartial investigation into the accusation against POSH. In order to address and promptly handle accusations of sexual harassment, the ICC must exercise vigilance. It has the duty to look into the concerns and make effort in resolving them. Sexual harassment complaints at work harm not only the reputations of the complainant and the accused but also the business's goodwill.

The Delhi High Court in the case of Confidential v. Indian Institute of Corporate Affairs, 2018made it clear that the petitioner may approach the IC for any necessary immediate protection and that the IC has the authority to provide interim relief if it sees fit.

The members of the ICC shall consist of:

  1. The Presiding Officer shall be a senior level female employee; in the event that she is not available, nominations from other offices or administrative units within the workplace shall be made.
  2. Two internal members, ideally with a background in social or legal work or a strong commitment to the cause of women.
  3. One external member who is knowledgeable about sexual harassment issues or who belongs to an organization or group that supports women cause.

Provided that at least one-half of the total Members so nominated shall be women. Every member of the Internal Committee, including the Presiding Officer, will serve in that capacity for a maximum of three years following the date of their nomination, as determined by the employer.

The Delhi High Court has stated in the case of Ruchika Singh Chhabra v. Air France India and Anr. (2018) that the POSH Act and its regulations should be strictly followed when appointing an external member of the IC. As a result, investigation processes carried out by an IC that is not legally constituted may be deemed void.

The Rajasthan High Court ruled in Sharma v. State of Rajasthan and Ors, 2018, that the external member does not always need to be an expert in law or have knowledge of the issues surrounding sexual harassment of women. It is sufficient to have social work experience in order to be eligible to join the IC.

The Bombay High Court ruled in Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University (2014) that an IC lacking two members—either committed to women's issues, experienced in social work, or knowledgeable about the law—would be unlawful and in violation of the POSH Act. The court underlined once more in that ruling that the employer bears the responsibility for establishing appropriate IC.

Powers:

In a recent judgment by Delhi High Court in the case of Sohail Malik v. Union of India, (2023) 3 HCC (Del) 228 held that an internal committee has jurisdiction under the POSH Act to initiate inquiry against a respondent who is employed in another department.

The Delhi High Court ruled in Tejinder Kaur v. Union of India that, if the IC identifies that the complainant's circumstances prevented them from filing a complaint earlier, it may extend the deadline for filing a complaint by an additional three months, or up to six months from the date of the incident, provided that the complainant record reasons in writing.

Ms. C (Name and Address Confidential) v. Indian Institute of Corporate Affairs(2018) is another case where the Delhi High Court made it clear that the petitioner is entitled to seek any necessary immediate protection from the IC, and that the IC may grant interim relief in its discretion.

Two possible outcomes exist in a case where the investigation was conducted by the IC after giving all parties a fair chance to present their case and reach a conclusion. This does not mean that the court should reevaluate the evidence and come to a different conclusion from the one that the ICC has reached. Vidya Akhave v. Union of India, Department of Women & Children & Ors (2016) was the case before the Bombay High Court when this was decided.

2. What happens if the Complainant feels unsafe during the trial?

In the event that the complainant feels unsafe or threatened during the investigation, she may notify this to the Internal Committee in writing. Depending on the seriousness of the situation, the IC may subsequently suggest to the employer one of the following actions:

  • Give the complainant leave for a maximum of three (3) months; this leave will be in addition to any other leave to which the complainant may be eligible.
  • Transfer the respondent or complainant to a separate workplace.
  • Prohibit the respondent from submitting their confidential report or reporting on the complainant's work performance and assign the same tasks to another employee.

Following that, the employer will need to discharge the recommendation and submit a report to the IC.

3. Is there any scope or process for conciliation and settlement?

Imagine: "A young female employee in a business atmosphere frequently finds herself the target of jokes and disparaging remarks from a group of her fellow male coworkers. Her workplace becomes toxic for her as a result of these remarks, which frequently discuss her sexual orientation. She attempts to ignore the comments at first, thinking they will stop, but they don't, and eventually the issue gets worse. She chooses to ask the Internal Committee (IC) of the company for assistance since she feels uncomfortable and upset and wants to find out how bad the harassment is and what legal options are available. She's not sure how to start the process or if the IC would offer alternatives for informal redressal in accordance with the law."

Therefore, in such a situation, the ICC or LCC may, at the behest of the injured woman, take steps to facilitate a settlement between the parties prior to opening an investigation; however, no financial settlement would be the basis of such conciliation. Section 10 (1) of the Act makes this provision. Following the settlement's recording, the committee notifies the employer or the district officer to proceed in accordance with the recommendation (Section 10(2) of the Act).

Also, as per Section 10 (3) of the act the committee shall provide copies of the settlement to the aggrieved woman and the respondent.

4. What if the allegation against the respondent is malicious in nature?

The committee may advise the employer or the district officer to take action against the aggrieved woman or the person who made the complaint if it is discovered that the accusation made by the aggrieved woman was malicious in nature or that the complainant or any other party knew the complaint to be false or had provided a misleading document. The penalties for such malicious complaints or anyone involved in such conspiracy are outlined in section 14 of the POSH Act read with Rule 10 of the POSH Rules. However, section 14 does not invite action in case of mere incapability to substantiate a complaint or in failure to provide adequate proof.

The High Court of Delhi in case of Anita Suresh v/s UOI, (2015) dismissed a writ petition filed by the complainant and imposed a fine of INR 50,000 for filing a false complaint and misusing the provisions of the POSH Act. Additionally, the Madras High Court ruled in Union of India v. Reema Srinivasan Iyengar, (2019) that although the POSH Act, 2013 is intended to give women equal standing and to protect their dignity and self-respect at work, it cannot be abused by women to harass someone with fabricated or false accusations.

5. Can the contents of complaint and inquiry proceedings be made public?

The confidentiality of the information disclosed during complaint and inquiry procedures is covered by Section 16 of the act. It does not limit the dissemination of the justice obtained for the victim of sexual harassment, provided that no personal information about the parties is disclosed. This is because it prohibits any kind of information about the aggrieved woman, the respondent, and the witnesses from being published, communicated, or made public. It also prohibits any information about the conciliation and inquiry processes and committee suggestions.

Praveen Bhatt v. Union of India and Ors(2020) established that Section 16 of the Act only forbids the press or media from publishing any material information that is brought to the public's attention during proceedings conducted in accordance with the Act. The Act does not prevent or prohibit consideration of the material for the purpose of judicial investigation where consideration of such material may be necessary.

As a working protocol for the courts, the Bombay High Court released guidelines to guarantee the confidentiality of hearings pertaining to cases of sexual harassment of women at work. The important highlights of the judgment are:

I. To make the parties' identities anonymous:

The Court Registry may request identity documents to confirm the deponent's identity, but such documents or personally identifiable information (PII) won't be stored in the files. In the order sheets, parties' names will be anonymized and referred to as Plaintiff, Defendant No.1, etc., without mentioning any PII like names, email IDs, addresses, or contact numbers. Furthermore, the orders will omit any details about witnesses and their addresses. All orders and judgments will be delivered privately, conducted in chambers or incamera, rather than pronounced in open court. Hearings will strictly necessitate physical attendance as no online or hybrid facilities will be available. Additionally, orders or judgments on merits will not be published online.

II. Hearings and access to confidential information:

During hearings, only advocates and litigants will be granted attendance. All staff members, excluding the Court Master/Associate, Sheristedar, stenographer, or those providing secretarial assistance, must vacate the court premises. Access to order inspections will be limited to Advocates on Record possessing a valid vakalatnama; no other individuals will be permitted for this purpose.

III. Prohibited Disclosures:

Strict guidelines have been imposed by the court for the procedures. First of all, it is totally prohibited to record anything during the proceedings. Second, only completely anonymized versions of court orders are permitted for dissemination, and any release of a court order into the public domain requires a specific court order. Strict confidentiality measures have also been implemented, which forbid any party—including advocates and witnesses—from sharing with the media the contents of any filing, judgement, or order, or from publishing such information on any platform—including social media—without the express consent of the court. In order to stress the significance of confidentiality, witnesses who take part in the action are required to sign a statement reaffirming their commitment to confidentiality and non-disclosure in addition to taking the traditional oath.

These rules are subject to revisions and modifications. Failure to comply with the said guidelines will amount to contempt of court and a monetary penalty of INR 5,000 as per Rule 12 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules 2013.

6. What are the provisions for appeal under the POSH Act?

Recently, in a 2023 judgment in the case of Mukesh Khampariya v. State of M.P., 2023 (SCC OnLine MP 3626) the Madhya Pradesh High Court underscored that once the Internal Complaints Committee formed under the Prevention of Sexual Harassment at the Workplace Act, 2013 (POSH Act) has prepared a report, there is no further avenue for appeal to a Departmental Authority. The court, through a single judge bench led by Justice Sujoy Paul, also noted that Section 18 of the POSH Act explicitly specifies that appeals can only be made to a court or tribunal.

Facts of the case:

  1. The Plaintiff is a former Station House Officer (SHO) and Respondent No. 7 was a Sub-Inspector, who worked together with the Plaintiff at Police Station Gadarwara, District Narsinghpur.
  2. The petitioner, as the SHO, took coercive actions against respondent No. 7 for alleged dereliction of duty, leading to a frivolous sexual harassment complaint filed by respondent No. 7 against the petitioner.
  3. An internal committee investigated the complaint and found the harassment allegations baseless on 26.05.2017. Subsequently, another inquiry in July 2018, directed by the Police Headquarter, found charges proved against the petitioner.
  4. The petitioner's counsel contested the orders on several grounds: the delay in the complaint's filing, improper appeal process, lack of provision for further inquiries, and absence of evidence in the report.
  5. However, respondent No. 7 and the panel lawyer supported the orders, asserting their validity.

In a single ruling Justice Sujoy Paul upheld the writ petition, annulling the directive issued by the Police Headquarters and invalidating the subsequent second inquiry report. The court emphasized a critical point, highlighting the absence of any source of power or justification behind the order issued on 25th June 2018. Additionally, the High Court underscored that according to Section 18 of POSH, appeals are expressly confined to courts or tribunals, explicitly excluding any provision for appeals to the Departmental Authority.Also, in the case of Ramesh Pal v Union of India, (2014) the court held that the appropriate remedy is to approach the courts and tribunals as per the service matters.

7. Does the Sexual Harassment Act need to take place in a place of employment?

No, it is not necessary for the act that qualifies as sexual harassment (SH) to only happen in the workplace. The legal framework acknowledges that sexual harassment can transpire in multiple settings, such as employer-hosted social events, events that arise during business travel, incidents that take place at a client or customer's premises, incidents that transpire during training sessions, business meals, promotional events, or events that are held in front of clients, customers, or potential partners. Furthermore, the act's reach extends beyond the actual workplace by manifesting during phone conversations or electronic media communications related to work.

8. What kind of penalties may be imposed by the Act?

Under the provisions outlined in the Service Rules, various forms of penalties can be imposed as per the Act. When service rules are not explicitly in place, disciplinary actions like issuing a written apology, reprimand, warning, or censure may be instituted. Further consequences could include withholding promotions, pay raises, or increments, and in severe cases, termination of employment. Additionally, individuals may be directed to undergo counseling or community service. Financial penalties may also be applied, taking into account the respondent's income and financial situation as well as costs associated with mental trauma, pain, and emotional anguish, as well as incurred medical bills and missed career opportunities. The financial obligations may be collected as arrears of land revenue if they are not fulfilled.

9. Does the Act specify that the inquiry needs to be completed in a given time frame?

Yes, the act does call for time-bound inquiries that must follow these deadlines:

  • The complaint must be submitted within three months of the last incident
  • To Complete the Enquiry –it should be within 90 days
  • Submission of Report by ICC/LCC to employer/DO- Within ten days of the inquiry's completion
  • For Implementation of Recommendations by employer- Within 60 Days
  • For Appeal: Within 90 days of the recommendations

Conclusion

Instances of sexual harassment in professional settings can be addressed and resolved with the help of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. The Act seeks to guarantee impartial investigations, prompt relief for complainants, and strict confidentiality of proceedings through the establishment of Internal Complaints Committees (ICCs). The Act's provisions, which include the jurisdiction and powers of the ICCs, procedural guidelines, penalties for malicious complaints, and the confidentiality of inquiry proceedings, must be strictly followed, as demonstrated by recent court rulings. Furthermore, the Act acknowledges that sexual harassment can happen in a variety of work-related contexts and is not limited to the workplace. The Act demonstrates its commitment to establishing a harassment-free workplace for women in a variety of professional domains by enacting financial penalties, disciplinary actions, and defined timelines for the inquiry process.

REFERENCES:

1. The Sexual Harassment Of Women At Workplace(Prevention, Prohibition and Redressal) Act, 2013
https://lddashboard.legislative.gov.in/actsofparliamentfromtheyear/sexual-harassment-women-workplace-prevention-prohibition-and-redressal

2. Handbook On Sexual Harassment Of Women at Workplace (prevention, prohibition and redressal) act, 2013
https://wcd.nic.in/sites/default/files/Handbook%20on%20Sexual%20Harassment%20of%20Women%20at%20Workplace.pdf

3. SCC Online Database

4. Prevention of Sexual Harassment at the Workplace (POSH)
https://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/Prevention_of_Sexual_Harassment_at_Workplace.pdf

5. Bharat Nain, FAQs on the POSH Act, 1st Edition, 2023 OakBridge Publishing

6. Sexual Harassment of Women At Workplace (Prevention, Prohibition & Redressal) Act, 2013
https://taxguru.in/corporate-law/sexual-harassment-women-workplace-prevention-prohibition-redressal-act-2013.html

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.