What is POSH Act?

The constitution grants to every person the Right to Live with Dignity (Article 21), right to carry trade, profession, business or occupation, which in itself includes safe environment free from sexual harassment and as a result of this, it is necessary that there should be free and safe environment at workplace. This is the reason for the enactment of this legislature. It is also known as POSH Act. The act is applicable to the whole of India.

The Act is not gender neutral and provides absolute protection to women employees at the workplace. The act provides for provision relating to prevention, prohibition, and redressal of sexual harassment at the workplace.

What is the main objective of the Act?

  • To provide safe & free working environment to female employees at the workplace
  • Ensures adequate redressal of complaints and grievances of sexual harassment
  • Lays down regulatory provisions prohibiting sexual harassment

What is the Scope of the Act?

Aggrieved women of any age; employed or not; who is subjected to sexual harassment can claim for protection and redressal under this Act.

On which establishment/workplace POSH Act is applicable?

The act is applicable to all the workplace, and includes:

  • Department, organisation, office, branch; owned and controlled by appropriate government/local authority/co-operative society
  • Private sector, private venture under taking, society, trust, non-governmental organisation
  • Hospitals/nursing homes
  • Sports institute/complex, stadium
  • Place visited by an employee in course of employment
  • Dwelling place/house
  • Unorganised Sector

What is Sexual Harassment?

Any kind of “unwelcome Act or behaviour”, and includes:

  • Physical Contact making the person uncomfortable
  • Demand/request of sexual favours
  • Sexually coloured remarks about the body, physical features of the person
  • Showing pornographic content without consent
  • Physical/verbal/non-verbal conduct of sexual nature
  • Uncomfortable staring
  • Sexually explicit comments
  • Sending sexually explicit messages, mails etc
  • Blowing whistle publicly with sexual intent

Any such act amounts to “sexual harassment”. Even if there is no sexual contact, but if the implied intent of the act is sexual, it will come under the purview of sexual harassment and the offender will be punished under the Act.

What is the Procedure for making Complaint under the POSH Act?

  • Aggrieved women can file for a written complaint to the internal or local committee within 3 months from day of the incident
  • If aggrieved women are not able to make a complaint due to mental, physical incapacity, death, legal heir/other person can file a complaint
  • The internal committee after the complaint is made makes an inquiry into the matter within 90 days from the day of complaint
  • After the completion of the inquiry, the IC will submit its report along with recommendations to the organisation of the party, and moreover, such organisation will have to act according to the recommendations of the committee

What are the compliances on the part of the employer under the Act?

  • Providing a safe working environment at the workplace
  • Should display penal consequences of sexual harassment at the premises
  • Workshops/ awareness camps to make employees aware of the Act
  • Providing facilities to Internal/Local Committees
  • Causing attendance of Respondents and Witnesses before ICC
  • Providing assistance to women in filling complaint under the Act
  • Considering sexual harassment as an offence in its internal policy

What the ICC should Recommend in case the allegations against the person are proved?

In case the allegations are proved against the person, the ICC may Recommend one or more of the following suggestions to the employer

  • To take action for sexual harassment as a misconduct in accordance with the provisions of the standing orders/ service rules as applicable to the delinquent employee or as prescribed by ICC in the event of non-availability of service rules.
  • Deduction from the salary of the delinquent employee an amount as determined by the ICC and make payment of the same to the aggrieved woman employee.
  • In the event of the inability of the employer to deduct the amount from the salary of the delinquent employee since such employee has not earned his salary on account of absenteeism or due to cessation of employment the ICC will direct an employee to pay an amount so decided to the aggrieved woman employee.
  • In the event of non-observance of the order by the delinquent employee, the ICC shall forward the order as mentioned above for recovery of the sum as arrears of land revenue to the District Officer.
  • The employer or the District officer as applicable in the matter shall act upon the recommendation within 60 days of its receipt by them.

Moreover, on the request of the aggrieved women, there are certain other relief also provided by the employer such as:

  • To Restrain the respondent from reporting on the work performance of the aggrieved women and will assign the same to any other officers.
  • To restrain the respondent from supervising any kind of academic activity in case it is an educational institution

What are the Offences and Penalties under the POSH Act?

  1. Employer fails to constitute Internal Committee; or contravenes any provision of the Act/rules: Punished with fine up to Rs. 50,000
  2. In case the employer commits the same offence for which he has been convicted under the Act: Doubled punishment; cancellation/withdrawal/non-renewal of licenses

What are the factors for determining compensation to be given to the aggrieved women under the Act?

  • Mental trauma, pain, suffering inflicted on the women employee
  • Loss in the career opportunity
  • Medical expenses incurred due to such act
  • Income and financial status of the person.

FREQUENTLY ASKED QUESTIONS (FAQs)

Who is responsible for the constitution of Internal Complaints Committee?

The employer is responsible to constitute an Internal complaints committee in every organisation which employs women

Who are the members of the Internal Complaints Committee?

Women Presiding Officer amongst the senior level of employee, At least 2 members from employees having experience in social work and legal knowledge, 1 member from NGO constituted for working for the cause of women. All the members of the ICC hold office for 3 years.

In case the aggrieved is not able to file a complaint, who can complain on her behalf?

If the aggrieved woman is suffering from physical incapacity then: Relative/friend, or co-worker, an officer of National/State Women’s Commission, or any person knowing about the incident If the aggrieved women are suffering from mental incapacity then: Relative/friend, or educator, or qualified psychiatrist, or guardian/authority, or any person knowing about the incident

What actions are to be taken in case of any false/malicious complaint?

If the Internal Complaints Committee concludes that the complaint filed by the aggrieved women is false or misleading or malicious, it may recommend the employer or the district officer to take necessary steps against the women employee

What is a Local Committee? Who is responsible for constituting it?

The district officer will constitute local committee for each district, in case the workplace does not have any internal complaint committee for receiving complaints District officer appoints Nodal Officer in every district, tehsil in order to receive complaints

Is publication or making contents available prohibited under the POSH Act?

The identity, address of the aggrieved women, respondent or witness, or any such information related to conciliation and inquiry should not be published by press or media or should not be communicated to the public

What is the penalty for making known the contents of inquiry proceedings?

Any person who makes the content of inquiry proceedings public should be liable to pay fine of Rs.5,000

Which details are required to be mentioned under the inquiry report?

  • Total number of complaints of sexual harassment during the year
  • Total complaints disposed
  • Total number of pending cases
  • Total number or workshops awareness programs
  • Nature of action taken by the employer or district officer

What is the provision for appeal under the POSH Act?

Any person who is aggrieved by the order of the local/internal committee or district officer, has the right to appeal against such order to the court or tribunal

What is the jurisdiction of Local Committee to entertain complaints?

The entire area of the District where such local committee is constituted

Who is a Nodal Officer and what type of work is performed by him under the Act?

The district officer is responsible for the appointment of a Nodal Officer for every tehsil, block, rural area, and such officer is responsible to receive and forward complaints to the Local Committee within 7 days

What is the power of ICC and LCC under the POSH Act?

The ICC and LCC has the same power as that of a civil court and by the virtue of Civil Procedure Code they are authorised to:

  • Summon and enforce the attendance of any person
  • Give the order for discovery or production of any documents
  • Any such other power required for proper and adequate disposal of cases

Is there any time limit for inquiry proceedings?

The inquiry proceedings must be concluded within 90 days, from the date of receiving the complaints

What are the Duties and Powers of the District Officer?

  • Monitoring the report submitted by Local Committee
  • Initiation of steps for promoting NGO’S to raise awareness about sexual harassment of women at workplace