PoSH: Prevention of Sexual Harassment – pre-requisite for any organization, be it a corporate or MSME – Organized OR Unorganized Sectors

 Prevention of Sexual Harassment – pre-requisite for any organization, be it a corporate or MSME – Organized OR   unorganized sectors 

 a Pocket Guide 

This article focusses on the understanding the essence of compliance with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) and Ensuring Governance

 I have endeavoured to cover the important definitions, basis key principles as enunciated by the Hon’ble Supreme Court and the High Courts, to understand the objectives and the spirit of the PoSH Act, with a better perspective. 

For the sake of brevity only key excerpts are reproduced and the readers may review the relevant judgments, available on web. Few judgements are covered on this blog and for other judgements, web-search, or write to me. 

FAQ: (1)   Common understanding is that only the employer of the Respondent can conduct the enquiry. How would an aggrieved woman be comfortable to appear before un-familiar Committee and voice her grievance!

Supreme Court - The Employer of the Complainant (aggrieved woman) has the jurisdiction to investigate the Complaint 

 Civil Appeal No.404 of 2024: Dr Sohail Malik vs Union of India and   another.

Key Question: In the complex structure of any organization be it Government/Public or Private Sector, where the complainant and the respondent may be the employees of different departments/establishments, whose ICC should lead the investigation?

Challenge/Issues 

  Whether the ICC constituted in one department… has the jurisdiction to entertain a complaint of sexual harassment under the POSH Act against an employee of a different department? 

  Whether the use of the words ‘where the respondent is an employee’ as contained in Section 11 of the POSH Act would mandate that ICC proceedings must be instituted and carried out at the workplace of the ‘respondent’ instead of the workplace of the aggrieved woman where incident occurred and complaint was made? 

  If the answer to Issue No. 2 is in the negative, how is action supposed to be taken by the department of the ‘respondent’ in pursuance of the findings of the ICC constituted at the aggrieved woman’s department? 

The Hon’ble Supreme Court, analysed the issues in-depth, focussed on the use of the expression ‘where’(Section of 11 of PoSH Act), and observed that the word ‘where’ is quite clearly used in the context of a situation, rather than place. 

Accordingly, the Hon’ble SC has concluded that the Employer of the Complainant (aggrieved woman) also can conduct the investigations and forward its Report to the Employer of the Respondent, recommending appropriate action. 

FAQ: (2)   Factors to determine ‘Sexual Harassment’

Supreme Court: In a case involving charge of sexual harassment or attempt to sexually molest, the courts are required to examine the broader probabilities of a case and not get swayed by insignificant discrepancies or narrow technicalities or dictionary meaning of the expression “molestation”

Apparel Export Promotion Council vs A.K. Chopra on 20 January, 1999

 One of the contentious defence in this case was that only an attempt was made to sexually molest the employee. The High Court held that the Respondent did not “actually” molest Miss X but only “tried to molest her” and, therefore, his removal from service was not warranted. Hence the victim resorted to pursue her case with the SC. The SC., in this context, affirmed that, in a case involving charge of sexual harassment or attempt to sexually molest, the courts are required to examine the broader probabilities of a case and not get swayed by insignificant discrepancies or narrow technicalities or dictionary meaning of the expression “molestation”. 

The SC further held that:

 They must examine the entire material to determine the genuineness of the Complaint.

 The statement of the victim must be appreciated in the background of the entire case.

 The evidence of the victim must inspire some confidence, so as to enable Courts to reply upon the same.

 Such cases are required to be dealt with great sensitivity.

 Sympathy in such cases in favour of the superior officer is wholly misplaced and mercy has no relevance.

 The conduct of the respondent against his junior female employee, Miss X, was wholly against moral sanctions, decency and was offensive to her modesty.

 The punishment imposed by the appellant, was, thus, commensurate with the gravity of his objectionable behaviour and did not warrant any interference by the High Court.

There is no gainsaying that each incident of sexual harassment, at the place of work, results in violation of the Fundamental Right to Gender Equality and the Right to Life and Liberty the two most precious Fundamental Rights guaranteed by the Constitution of India.

FAQ: (3)   Can an accidental physical contact, even though unwelcome, would amount to sexual harassment?

Delhi High Court: A physical contact or advances, undoubtedly, would constitute sexual harassment provided the same is sexually determined behaviour. However, mere accidental physical contact, even though unwelcome, would not amount to sexual harassment.

Shanta Kumar v. CCSIR (CDIR) and others, 2018 LLR 8

In the above matter, Delhi High Court held that a physical contact or advances, undoubtedly, would constitute sexual harassment provided the same is sexually determined behaviour. Mere accidental physical contact, even though unwelcome, would not amount to sexual harassment. Physical contact having no undertone of a sexual nature and not occasioned by the gender of the complainant may not necessarily be sexual harassment. Though the accused might have held the complainant’s arm and thrown the material in her hand, in a fit of anger, the incident may be a case of harassment and deplorable but it would not be termed as sexual harassment.

FAQ: (4)  Does the PoSH Act protects Human Rights /Loss of Reputation

MP High Court

Global Health Private Limited vs. LCC District Indore & Others, 2020 LLR 40

The HC, inter alia, observed that the scope and dimension of the term “sexual harassment’” must not receive narrow and pedantic meaning since it includes an act of violation of human rights. 

The word ‘includes’ makes a definition of enumerative but not exhaustive and that the provisions of the Act required to be interpreted broadly and liberally to achieve its aims and objectives.

The High Court also  awarded Rs.25 lakhs as compensation to the complainant for loss of her reputation, emotional distress and deprivation of right to live with dignity. Such a heavy compensation was owing to the failure on the part of the management to address the Complainant’s case of sexual harassment. The Compensation was awarded for pain and suffering, loss of reputation, emotional distress and loss of salary.

FAQ (5)   Can a grievance be lodged against the same gender ?

Calcutta High Court: Respondent means a person against whom the aggrieved woman has made a complaint under section 9

Dr. Malabika Bhattacharjee v. ICC; Vivekananda College & Others 

In this case, the High Court examined, particularly, Sections 2(m), 2(n), and 3 of the PoSH Act and It noted that the term "respondent" means "a person," which is gender-neutral and does not exclude same-gender complaints. The Court rejected the petitioner's argument that the Act implicitly limits complaints to opposite-gender scenarios by observing that the statutory language and social context support a broader interpretation.

The HC emphasized that sexual harassment pertains to the dignity of a person related to their gender and sexuality, and a person of any gender can be sexually harassed by a person of the same or different gender. The HC recognized that evolving social perspectives, including debates on same-gender marriages, making it plausible that same-gender sexual harassment complaints are maintainable under the Act.

FAQ (6)   Is the Conciliation process as provided for in the PoSH Act, mandatory!

MP High Court

Global Health Private Limited vs. LCC District Indore & Others, 2020 LLR 40

The High Court, inter alia, observed that neither the management through its internal committee nor the local committee made an attempt for resolution though conciliation statutorily required under section 10 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 before proceeding with the enquiry under section 11 of the said Act. 

In the fitness of things it is considered expedient to afford an opportunity to either party to make all possible attempts for resolution of the controversy on a positive note in a friendly manner. Hence, it is directed that the petitioner/management shall show its magnanimity affording audience to respondent No. 2 and hear her grievances patiently. Thereafter, by a conciliatory process make best efforts to resolve the issue regard being had to the norms prevailing in the establishment of the petitioner. 

FAQ (7)   Can the term  “Workplace” be restricted to an office? What is “Workplace”?

Delhi High Court: The Delhi High Court held that the phrase "workplace" could not be rigidly structured to mean merely an "office,"  

Saurabh Kumar Mallick v. The CAG of India & Anr, (2008)

The Delhi High Court held that the phrase "workplace" could not be rigidly structured to mean merely an "office," which is a place to which every member of the public has access. The POSH Act defines "workplace" as any place visited by an employee as a result of or during the course of work, including transportation provided by the employer for such a journey, as well as a place to live or a residence. The HC, went on to hold  that,  if an individual conducting business through video conferencing engages in sexual harassment with an employee, he cannot claim that the act was not committed at a "workplace."

The HC further observed that “a narrow and pedantic approach cannot be taken in defining the term ‘workplace’ by confining the meaning to the commonly understood expression office”, 

Bombay High Court: (Nagpur Bench) The definition (workplace) is inclusive and again deliberately kept wide by the Parliament to ensure that any area where women may be subjected to Sexual Harassment is not left unattended or unprovoked for.

Jaya Kodate v/s Rashtrasant Tukdoji Maharaj Nagpur University (2014)

The High court, held that …  ”This definition (workplace) is inclusive and again deliberately kept wide by the Parliament to ensure that any area where women may be subjected to Sexual Harassment is not left unattended or unprovoked for. Its Clause (v)..shows even an artificial extension thereof and it may include workplace of other employer. The HC further held as follows:

Section 2(p) defining “unorganized sector” in relation to a workplace also brings out this intention. This wide canvass brings to fore the intention to provide protection and prevention at all possible workplaces where either Aggrieved Woman works or may be or visit in connection with her duty or the Respondent is at work. 

Hence any Woman at her workplace cannot be disrespected by anybody but similarly, she cannot also be disrespected when she is at the workplace of the Respondent. Section 19 dealing with the duties of employer mandates that every employer has to provide a safe working environment for a woman at the workplace which includes even safety from the third persons coming into contact with her at the workplace. Clause (h) of Section 19 is also conducive to this interpretation.

FAQ (8) Who is an “aggrieved woman”?

The PoSH Act defines that, unless the context otherwise requires- “aggrieved woman” means-

i. in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;

ii. in relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house;

FAQ (9) Is it mandatory for the employer to organize workshops/awareness programmes?

Supreme Court:  

Aureliano Fernandes v. State of Goa and Others 12 May 2023

The Hon’ble Supreme Court, in the above matter,   issued a slew of directions, summarized as follows:

Directions:

1. The Union of India, State Governments, and Union Territories must conduct a time-bound assessment to verify if all relevant ministries, departments, government organizations, authorities, public sector undertakings, institutions, bodies, etc., have constituted Local Committees (“LCs”)/ Internal Committees (“ICs”), as the case may be. The composition of these committees must strictly adhere to the provisions of the POSH Act.

2. Ensure that necessary information regarding the constitution and composition of LCs/ ICs, including email IDs and contact numbers of designated personnel, the procedure for filing online complaints, and relevant rules, regulations, and internal policies, is readily available on the websites of respective authorities, functionaries, organizations, institutions, bodies, etc. The provided information should be regularly updated.

3. Authorities, managements, and employers must take immediate and effective measures to familiarize members of LCs/ ICs with their responsibilities and the proper conduct of inquiries when receiving complaints of workplace sexual harassment. This includes the entire process from complaint reception to conclusion of the inquiry and submission of the report.

4. Regular orientation programs, workshops, seminars, and awareness campaigns should be conducted by authorities, managements, and employers to enhance the skills of LCs/ ICs members and educate women employees and women's groups about the provisions of the POSH Act, its rules, and relevant regulations.

Statement by Ms Rekha Sharma – former Chairperson – National Commission 

for Women

“Though there are number of organizations conscious about the need to adopt appropriate policies and comply with the provisions of the PoSH Act, the most pressing concern that I have found is the lack of training on legal knowledge among the Internal Committee Members (IC) for conducting of an inquiry. Members of IC are usually found unable to conduct inquiries or appreciate evidence or draft appropriate reports, or recommendations” – 

Do Please contact Indlawshastra @ 9920780095, viswanathanvasudevan159@gmail.com  for guidance, nomination Independent Committee Member and training/orientation sessions.