This article has been written by Advocate Abhishek Upadhye.
The time has changed rapidly so as the thinking of people has also changed. In ancient time women’s life was surrounded around her husband, in-laws , family and household chores, she was not allowed to step of the house for any reason especially after the sunset.
Today in the world of 21st-century women have become more independent and love to step out for work and support her family wherein the family to supports her. Working and handling house responsibility is not as easy as we think. Women are becoming more responsible towards the career which is a quiet happy thing for a family as a whole and as a nation, it’s a proud thing.
But is it not our whole and sole responsibility to keep a healthy and safe environment for her.
Today, whenever we switch on the television or read a Newspaper the news, is common, so and so women got sexually assaulted by her colleagues or in the heat of rage the man raped a woman ……
Just supporting her is not our responsibility…….
Most of the sexual assault is created at the workplace as the men things that a woman cannot do anything without them, most of the powerful man think that using their power they can dominate or sexually harass the women.
What is Sexual Harassment?
Sexual harassment is touching a women without her will or consent. It does not only include Physical assault but also mental assault.
What is the workplace?
The actual meaning of Workplace is a place surrounded by many men and women who work shoulder to shoulder and share equal responsibility of a business or an industry. The definition of Workplace has changed recently as it is a place where gender discrimination is at its peak, whereas the power of men is being misused in man
What is POSH at the workplace?
To start with, the full form of POSH is Prevention of Sexual Harassment. This act under the gambit of which POSH at workplace falls is formally called Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The main objective of this act was to ensure the safety of women and ensure that they are not harassed and violated at the workplace. This act is in unison with article 21 of the Constitution of India that guarantees the ‘Right to Life’.
What is the Vishaka Guidelines?
Back to 1997, in a small town of Rajasthan, Bhanwari Devi a social worker raised a voice against the marriage of 1-year-old girl child, wherein she was raped by 5 family members of the same family. The government servants ( Police Officer) rejected her complaint filing as she was not having any evidence, during this tough situation an NGO named Vishaka helped the lady and gave her the justice.
After this, the Vishaka Guidelines came in order but was not known to people. After Nirbhaya gang rape, the honourable court took the matter into consideration.
What is Sexual harassment Act?
With the help of Vishaka Guidelines , Sexual Harassment Act was enacted and the bill was passed by Lok sabha on 3rd September 2012 nd by Rajysabha on 26th February 2013. The act was known as Sexual Harassment Act or Nirbhaya Act , it is also known as POSH act.
What does the act say?
The act says that every organization or institution with more than 10 employees must consist an ICC committee(INTERNAL COMPLAINT COMMITTEE). The act says every women has equal and foremost right to work in safe environment.
What does sexual harassment at workplace include?
- PHYSICAL CONTACT OR ADVANCES
- A DEMAND OR REQUEST FOR SEXUAL FAVOURS
- SEXUALLY COLOURED REMARKS
- SHOWING PORONOGRAPHY
- UNWELCOMED PHYSICAL, VERBAL OR NON VERBAL CONDUCT OF SEXUAL NATURE
Important Compliances that should be followed
PART A: Internal Complaints Committee (ICC)
It is mandatory for every employer to formulate and constitute Internal Complaints Committee for addressing any sexual harassment complaints arising in the said workplace. A very important compliance that needs to be followed by companies is that if they have offices at different districts or states in India; such committee needs to set up at every head office at the district and state level which means that if a company has one office in Mumbai and one office in Bangalore; the ICC committee should be set up in both Mumbai and Bangalore location.
Who should be a part of the ICC (Constitution of the Committee)?
- Presiding Officer: The Presiding Officer shall be head of the Internal Complaints Committee (ICC) and shall lead the functioning of the committee. The mandatory factor is that she shall be a woman who is employed at a senior level at workplace from amongst the employees.
- 2 more Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge.
- one member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment:
- The term of the Presiding Officer and other members shall not exceed three years.
Can Male members be a part of the Internal Complaints Committee (ICC)?
Yes, male members can be a part of the Internal Complaints Committee (ICC). However atleast one half of the total members in the ICC shall be women.
PART B: Local Complaints Committee (LCC)
The Local Complaints Committee (LCC) is set up by the government at the district level and hence it is mandatory for every district to have a Local Complaints Committee (LCC). The District Magistrate or Additional District Magistrate or the Collector or Deputy Collector shall be called as the District Officer and he will carry out the required functions under this act.
Every District Officer shall constitute in the district concerned, a committee to be known as the “Local Complaints Committee” to receive complaints of sexual harassment from establishments where the Internal Complaints Committee has not been instituted due to having less than ten workers or if the complaint is against the employer himself.
Who should be a part of the LCC (Constitution of the Committee)?
- Chairperson: The Chairperson shall be the head of the Local Complaints Committee (LCC) and shall lead the functioning of the committee. The mandatory factor is that the Chairperson shall be a woman who is doing social work which is dedicated to the cause of women
- one Member to be nominated from amongst the women working in block, taluka or tehsil or ward or municipality in the district;
- two Members, of whom atleast one shall be a woman, to be nominated from such non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment.
- Atleast one of the members should have a background or knowledge of law.
- The term of the Chairperson and other members shall not exceed three years.
How does a Woman make a Complaint? (Procedure and Timeline)
- Any aggrieved woman can make a complaint to the ICC or LCC within 3 months from the date of any sexual harassment incidence.
- Any assistance as to make the complaint shall be provided by the ICC or LCC free of cost.
What Should the Complaint cover?
A lot of women while making a complaint miss giving details such as the date, time, place of occurrence, witnesses and evidences which makes the complaint weak and getting justice becomes difficult in such cases. Therefore, in the interest of justice the important part is that the complaint shall be made in writing and the complaint should highlight in-detail description of the incident including the
- Probable time when such harassment occurred
- Witnesses(if any) to the incident
- Evidences which include any letters, emails, text messages, videos or any other of form of digital and non-digital evidence.
What Procedure should the ICC or LCC follow when a Sexual Harassment complaint is made?
PART A: INQUIRY & INVESTIGATION
- Initiate Enquiry: After receiving the complaint the ICC or LCC shall make initiate an enquiry of the Complaint.
- Investigate: After initiating the enquiry, the ICC or the LCC is required to investigate the matter. The ICC or LCC have the power of District Court for the purpose of investigation which include :
- Summoning and enforcing the attendance of any person and examining him on oath
- Requiring the discovery and production of important documents related to the complaint.
- Giving an opportunity of being heard to the Respondent which includes taking his statement and reply on the complaint; taking on record the evidence and proofs given by him;
- Giving an opportunity to the Respondent to know and submit his response to the evidence and witness given against him.
- Timing for Inquiry and Investigation: 90 days from the date from the complaint was received.
Part A: When No Sexual Harassment Is Deduced???
When the ICC or LCC comes to an conclusion that no sexual harassment has taken place; the ICC or LCC shall mention the same very clearly in the report and send the same the employer or district officer recommending that no action needs to be taken and the respondent shall be acquitted of the charges.
Part B: When the complaint is found to be malicious
When the ICC or LCC concludes that the complaint was made with malicious intentions; the ICC or LCC shall recommend the employer or the district officer to take strict action against the woman which includes termination and can also invoke criminal charges under the Indian Penal Code (IPC) against the woman.
When the Complaint is proved and the person is found guilty
When the ICC or LCC concludes that the complaint is true and sexual harassment has taken place; it may order the Employer or District Officer respectively to take:
- Strict Action: Take strict action for sexual harassment as per the internal policies set up by the company for misconduct which includes suspension and/or termination.
- Monetary Compensation: Order to pay compensation from the salary or wages of the respondent to the tune of the damages suffered by the aggrieved woman.
Procedure for appeals
What should an aggrieved person if he/she is not happy with the recommendations made by the ICC or LCC?
Any aggrieved person who feels that he/is she is unhappy or dissatisfied with the investigation report and subsequent recommendations of the ICC or LCC; shall prefer an appeal to the Additional Labour Commissioner within 90 days after receiving the recommendation or report of investigation/findings.
Duties of Employer
- Provide safe working environment at the workplace.
- Constitute an Internal Complaints Committee (ICC) for managing and handling sexual harassment complaints.
- display at any conspicuous place in the workplace, the penal consequences of sexual harassments
- 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
- provide assistance to the woman if she so chooses to file a complaint relating to sexual harassment with the necessary police authorities.
Penalties for Employer in case of Non-Compliance of POSH Act
Punishable with fine which may extend to rupees fifty thousand (Rs.50,000/-)
A safe working place is a whole and soul right of both a male and female employee. Every woman deserves to be felt safe and should be surrounded with healthy working environment…
A safe woman , a safe family and a safe Nation ……..
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