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Courtesy/By: RAJNISH SUMAN | 2019-11-28 11:19

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH) was enacted by the government for the prevention, prohibition and redressal of sexual harassment against women at the workplace. POSH mandates employers to take concrete steps towards maintaining zero-tolerance attitude towards the acts of sexual harassment and any act of failure is penalized with fine and cancellation of business license. Primary obligation to ensure that any women employee is not meted with workplace sexual harassment lies on the employer.

“Employer” is defined in Section 2 (g) of the POSH Act as:  
i.    The head of any department, organization, undertaking, establishment. enterprise, institution, office, branch or unit of the appropriate Government or a local authority
ii.    In any workplace not covered under sub-clause (i), any person responsible for the arrangement, supervision and control of the workplace.
iii.     In relation to workplace covered under sub-clauses (i) and (ii), the person discharging contractual obligations with respect to his or her employees;
iv.    In relation to a dwelling place or house, a person  or a household who employs or benefits from the employment of domestic worker, irrespective of the number, time period or type of such worker employed, or the nature of the employment or activities performed by the domestic worker.
The key compliances for employers and the practical concerns shrouding implementation of some of them are provided succinctly in the following paragraphs.
 I) Formation of Internal Complaints Committee (under section 4 of the POSH Act)
II) Implementation of the Internal Complaints committee recommendations.
III) Releasing of the Annual report.

Formation of an Internal Complaints Committee
 Section 4 of the POSCH Act, 2013 provides for the setting up of an Internal Complaints Committee at every workplace by the employer irrespective of the number of women working at that particular workplace. It further states that if an employer has various workplaces or offices at more than one location, then a separate ICC must be formed for every such work place or office.
According to the Section 4 of the POSH Act, the ICC shall consist of the following member nominated by the employer, namely:
i.    A presiding officer, who should be a women employed at a senior level at the workplace amongst the other employees (Provided that in case a senior level woman employee is not available, the Presiding Officer shall be nominated from other offices or administrative units of the workplace).
ii.    At least two members from the employees preferably committed to the cause of women or who has some experience in social work or has legal knowledge.
iii.    One member from the non-governmental organization or association, who is dedicated towards the cause of women and who is aware of the issues relating to sexual harassment at the workplace.  

•    Note: Half the number of the nominated members of the Internal Complaint Committee must be women.

   The presiding officer and every member of the committee shall hold the office for a period, not more than three years from the day of their nomination in the committee as notified by the employer.
In absence of a strict mandate, entities have subjectively interpreted the composition of ICC resulting in slack implementation of POSH's most important mandate. Several entities have constituted ICCs derogating from the criteria set out for Presiding Officer, or have appointed independent members from NGOs who may not have adequate experience and expertise in matters of sexual harassment, with the ultimate effect being a half-hearted compliance with POSH.

Implementation of the ICCs recommendation
Once a complaint has been referred to the ICC, the employer is bound to comply with the ICC recommendations after completion of inquiry into a harassment complaint, if the inquiry has led to the conclusive finding of the accused guilty of the conduct. ICC is required to provide its report along with possible course of actions and recommendation to the employer within 10 days of filing of the complaint. The course of action and the punishment varies according to the intensity of the nature of the harassment. It varies from written apology, warning, reprimand, withholding promotions or pay increment, disciplinary action for misconduct, deduction of compensation from the respondent’s salary and termination. In cases where the ICC finds that the allegations raised are without merit and forged evidence has been presented, it recommends the employer to take suitable action against the complainant and any person acting in consonance with her, in accordance to the terms and conditions of the employment. Further if the ICC suggest any interim measures such as transfer of the aggrieved woman or the accused to another workplace, restrain on grant of leave for three months.
The employer must act on the recommendations provided by the ICC within 60 days of the receipt, i.e. 50 days from the date when the ICC has sent them the recommendations.
According to Section 26 of the ICC, if the employer fails to take cognizance of the recommendations made by the ICC, he will then be punished by a fine which may extend to Rs.50,000.  If he/she further takes no cognizance then he would be punished with double the fine amount with which he was penalized the first time. If even after this, the approach of the employer didn’t change, it lay lead to cancellation of his business license, or non-approval or non-acceptance of registration with the Government, required to do business.

Releasing the Annual Report
Every employer company is mandated to disclose details of harassment complaints filed and their status in the annual report prepared for every financial year. For other organizations where preparing annual report is not required, number of cases must be intimated to the concerned Local Committee. This obligation has an very complex interplay with a company's board of directors' obligation under Companies Act, 2013 ("Companies Act"). The annual report is approved by the board and shareholders in their general meeting, followed by filing with the Registrar of Companies ("ROC"). Alongside the annual report, the Companies Act mandates the board to prepare a "Directors' Responsibility Statement", wherein the directors are required to affirm and declare that necessary steps are taken to ensure compliance with applicable law. False declaration in the aforesaid statement is punishable with fine for the company between INR 50,000 to INR 25,000,000 and personal liability on the officer who is in default for imprisonment up to 3 years and fine between INR 50,000 to INR 500,000.
In the event any provision of POSH is not complied with, an affirmation cannot be given by the board, unless properly qualified. Thus, it is more than likely that POSH non-compliances such as non-establishment of ICC, large number of pending complaints, failure to implement ICC's recommendation will get reflected in the annual report and Directors' Responsibility Statement. This may lead to potential red flags during an audit process. Hence, boards must be mindful and include appropriate qualifiers if need be, with accurate explanation for any lapses which may have occurred.

Apart from these above mentioned compliance measures, Section 19 of the POSH Act, 2013 mentions some other of the necessary steps to be followed by the employer to comply with the regulations of the POSH Act. Some of them are as follows:
•    Provide safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace.
•    Display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under subsection (I) of Section 4.
•    Organize workshops and awareness programmes at regular intervals for sensitizing the employees with the provisions of the Act and orientation programmes for the members of the Internal        Committee in the manner as may be prescribed.
•    Provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry.
•    Assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;
•     Make available such information to the Internal Committee or the Local Committee, as the case may be, as it may require having regard to the complaint made under sub-section (1) of Section 9.
•    Cause to initiate action, under the Indian Penal Code or any other law being in action at that time, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place.

Courtesy/By: RAJNISH SUMAN | 2019-11-28 11:19