This article is written by Yukta Palve

Introduction

Sexual Harassment of Women at the workplace by superiors, customers, co-workers, and others is not only a modern-day scenario. It has been prevalent since old times. The Vishakha& Ors. Vs. The state of Rajasthan [1997 6 SCC 241] case in 1997 was the first time when this issue was addressed and guidelines were passed to prevent such crimes against women. On one hand, the country is progressing, making policies to give women equal opportunities to grow, On the other hand, Instances of sexual harassment at the workplace are increasing making it more challenging for women to survive and progress. It is not only in urban areas but also in rural areas where we can find women and young girls being exploited in the name of work.

This is a violation of the fundamental rights of equality under Articles 14 and 15 and the Right to life and to live with dignity under Article 21 of the constitution. The Posh act came into force after sixteen years since the Vishakha Judgement was given. This act is called the sexual harassment of women at the workplace (prevention, prohibition, and redressal) act, 2013 and its purpose is to protect the fundamental rights given by articles 14,15, and 21 of women in our country by preventing and providing speedy redressal to sexual harassment at workplaces.

POSH ACT, 2013

The act that governs the cases of sexual harassment at the workplace is known as the sexual harassment of women at the workplace (prevention, prohibition, and redressal) act, 2013 or POSH Act.

What constitutes sexual harassment under the POSH ACT?

An unwelcomed act or behavior that includes—

• Any kind of physical contact or advance towards a women
• Any demand or request for sexual favors
• Sexually colored remarks made towards the victim
• Showing pornography
• Unwelcomed physical, non-verbal or verbal behavior or conduct of sexual nature.

Hence, we can see that if a man is attracted to a woman working with him and asks her out, it is not considered sexual harassment. However, if the man does an act like forcing the women to go out with him, physically and by his verbal sexual remarks making the women feel uncomfortable in the work environment, or doing any act which is physical, verbal, or non-verbal of sexual nature or send inappropriate content to the women then it is considered as sexual harassment.

Further, the following circumstances will also be treated as sexual harassment if acts of sexual nature are connected with them—

• A promise of preferential treatment in the women’s employment (implied or explicit)
• A threat of detrimental treatment in women’s employment (implied or explicit)
• A threat about her future or present employment status (implied or explicit)
• Interfering with her work by creating an intimidating or hostile work environment for her
• Humiliating the woman that Is affecting her health or safety.

Applicable to whom?

Concerning a workplace –

• A woman of any age,
• Employed or not

When the workplace is a dwelling house—

• A woman of any age working in that house. (Domestic worker)

Women Employed at a workplace on—

• Regular, temporary, ad hoc, or daily wage basis
• Employed directly or indirectly by contractors, with or without knowledge of employers
• Employed on remuneration or voluntary basis

Also Includes—

• co-worker,
• a contract worker,
• probationer,
• trainee,
• apprentice or called by any other such name

This act protects employees working in government organizations, private organizations, hospitals, sport-related institutions, houses, places visited during working hours, unorganized sectors.

Committees Constituted under the POSH Act

Internal committee

This act mandates every employer, employing 10 or more workers to form an Internal Complaints Committee at every administrative level. One-half of the members of this committee should be women led by the Presiding Officer who should be a woman. All the members will hold office for not more than 3 years.

According to the posh act, the Workplace includes any place visited by the employee during employment which also includes transportation provided by the employer to travel to and from the workplace. Hence when a women employee is harassed outside the premises of the company but during the working hours, while doing the work of the company shall also come under this act.

Local Committee

Every district shall have a local committee where the complaints of sexual harassment can be made if the company of the aggrieved women does not have an internal committee. Women can file complaints with local committees having authority over the district. Often cases of sexual harassment go unnoticed in small workplaces as they don’t have Internal committees or redressal forums. The local committees ensure that even small businesses or offices employing less than 10 employees are protected under this act.

Women can file complaints of sexual harassment in the following manner—

The aggrieved women should file a written complaint with the Internal Committee or Local Committee within three months of happening of the incident. In case the incident took place multiple times then the women can file the complaint within three months from the day on which the incident last took place.

Many times, women are not in a mental or physical capacity to make a written complaint, at such times they can seek assistance from the members of the Internal or Local committees. Due to valid reasons, the committee can further extend the period to three months added to the initial three months if it thinks necessary.

The aggrieved woman can also be represented by her legal heir if she is not in the condition, physically, mentally, or due to her demise to file the complaint.

Procedure after filing a complaint—

After filing the complaint and before starting the inquiry on the request of women the local committee or internal committee shall take steps to settle the matter between, she and the offender through conciliation but money cannot be used as a basis of the settlement. The committee will then record settlement and forward it to the employer or district officer to take the recommended actions. It is the duty of the committee in charge of the complaint to provide copies of the settlement to the aggrieved women and the offender. No further inquiry can take place after the settlement arrives.

If the terms and conditions of the settlement are not being complied with by the offender then the aggrieved women can inform the committee. The committee will then inquire into the complaint and register a complaint with the police under Section 509 (Word, gesture, or act intended to insult the modesty of a woman)of the Indian Penal Code. If the victim and the offender both are employees of the same organization, they will be given equal opportunity to be heard the copy of the findings will be provided to both of them.

If the respondent is convicted under the offense, then the court shall order to pay an amount it deems fit to the aggrieved women by the offender.

The internal committee or the local committee while inquiring has the same powers as a civil court and thus can enforce the attendance of any person, request to produce the necessary documents, etc.  The inquiry should be completed within ninety days from the date of complaint.

During the pendency of the inquiry, on the request of the aggrieved women, the Internal or Local committee may transfer her or the offender to any other workplace, grant leave to the aggrieved women for three months or provide any other relief to the aggrieved women. The leave granted will be additional to the leave she was originally entitled to.  On the recommendation of the committee, the employer shall make the necessary changes and send the report to the committee.

After completing the inquiry, the committee shall send the reports of its findings to the employer or district officer within ten days and also to the parties to the case.

If the allegations against the offender are not proved the committee will recommend not take any actions. But if the allegations are proved the committee will recommend the employer or the district officer to take action and treat sexual harassment as misconduct according to the service rules applicable to the offender and deduct an appropriate amount from his salary which shall be paid as compensation to the aggrieved women. The employer or the district officer has to act within 60 days after receiving the recommendation.

The act provides for a very comprehensive procedure to ensure redressal of sexual harassment cases. Aggrieved women can approach the Internal Committees of their workplace or the local committees for redressal. The act ensures that the aggrieved woman gets all assistance needed to get redressal for her complaints. It also gives guidelines and protects the interests of the employers. Here the employer is not held responsible for the acts of another individual provided he all the guidelines and he is not the offender.

Rules for Employers

Section 19 of the POSH act has provided 10 duties on the part of the employer. Every employer should ensure their policies comply with these duties. Non- Compliance may lead to a penalty fined under section 26 of this act. As per the act, Every employer should—

• Provide a safe working environment and safety from people coming in contact with the women worker
• At any conspicuous place in the factory, the employer should display the punishments for sexual harassment and the orders given by the internal committee.
• Create awareness among the workers by conducting workshops for workers and the members of the committee.
• The internal committee should be given the necessary facilities for dealing with complaints or holding an inquiry.
• Ensure the attendance of the respondent(accused) in front of the committees.
• Provide all the information asked by the committees regarding the complaint.
• Assist the woman if she decides to file a complaint under the Indian Penal Code or any other law.
• Take action against the offender
• Sexual harassment should be treated as misconduct as per the policies and actions should be taken.
• Ensure timely submission of reports from the internal committee.

Some other provisions –

• In case of false evidence or malicious (fake) complaint by the woman or other persons giving witness, the internal committee or local committee involved in the case shall recommend the employer or the district officers to take adequate actions against them.
• The amount of compensation payable to the aggrieved women will be measured by taking into consideration various factors like mental trauma, pain, suffering, loss in career opportunity of the woman, medical expenses needed for treatment (physical and Psychiatric), Financial status of the offender and the feasibility of payment in lump sum or installments.
• This act also prohibits the publication of any information relating to the case, starting from the complaint to the final report. It prohibits sharing or communicating any such information to the public, media, or press. This ensures the right to privacy of the women and safeguards their right to live with dignity.
• An employer who fails to comply with the provisions of this act shall be fined an amount that can extend to fifty thousand rupees.
• If an employer who was previously convicted for an offense under this act, commits the same offense again, he shall be subjected to maximum punishment which may be two times more than the previous. Further, his license to conduct busy will also be canceled.

Conclusion

The provisions of this act safeguard the fundamental rights under articles 14,15 and 21. However, there is a strong need for creating awareness among women about their rights. Many women choose to stay silent to prevent being judged by society. Many women change or stop their work too. In my opinion, the act makes it compulsory to form a committee that works towards creating awareness, monitoring the employee’s behaviors and actions, and counseling the aggrieved women. But women working as domestic workers or in small businesses are still unaware of their rights and out of reach of such redressal mechanisms. Steps should be taken to fill these loopholes and achieve overall prevention, prohibition, and redressal of sexual harassment. The implementation of these provisions plays an important role in the prevention of sexual harassment. The internal committee and local committee should be made responsible for the effective implementation of these rules Only then the women will be safe in the workplace.