20.

Chapter – 20 Sexual Harassment of women at

workplace (Prevention, Prohibition and redressal)
Act, 2013
HISTORY OF THE LEGISLATION
Sexual harassment of a woman in workplace is of serious concern to humanity
on the whole. It cannot be construed to be in a narrow sense, as it may include
sexual advances and other verbal or physical harassment of a sexual nature.

Sexual harassment results in violation of the fundamental rights of a woman to

equality under Articles 14 and 15 of the Constitution of India and her right to life
and to live with dignity under Article 21 of the Constitution and right to practice
any profession or to carry on any occupation, trade or business which includes a
right to a safe environment free from sexual harassment.

The principle of gender equality is enshrined in the Constitution, in its Preamble,

fundamental rights, fundamental duties and Directive Principles. However,
workplace sexual harassment in India, was for the very first time recognized by
the Supreme Court of India in its landmark judgment of Vishaka v. State of
Rajasthan, 1997 6 SCC 241: AIR 1997 SC 3011 (“Vishaka Judgment”), wherein the
Supreme Court framed certain guidelines and issued directions to the Union of
India to enact an appropriate law for combating workplace sexual harassment. In
the absence of a specific law in India, the Supreme Court, in the Vishaka
Judgment, laid down certain guidelines making it mandatory for every employer
to provide a mechanism to redress grievances pertaining to workplace sexual
harassment (“Vishaka Guidelines”) which were being followed by employers
until the enactment of the Act.

The Vishaka Judgement: In 1992, Bhanwari Devi, a dalit woman employed with the
rural development programme of the Government of Rajasthan, was brutally
gang raped on account of her efforts to curb the then prevalent practice of child

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marriage. This incident revealed the hazards that working women were exposed
to on a day to day basis and highlighted the urgency for safeguards to be
implemented in this regard. Championing the cause of working women in the
country, women’s rights activists and lawyers filed a public interest litigation in
the Supreme Court of India under the banner of Vishaka. The Supreme Court of
India, for the first time, acknowledged the glaring legislative inadequacy and
acknowledged workplace sexual harassment as a human rights violation. In
framing the Vishaka Guidelines, the Supreme Court of India placed reliance on
the Convention on Elimination of All Forms of Discrimination against Women,
adopted by the General Assembly of the United Nations, in 1979, which India has
both signed and ratified.

As per the Vishaka Judgment, the Vishaka Guidelines issued under Article 32 of the
` Constitution, until such time a legislative framework on the subject has been
drawn-up and enacted, would have the effect of law and would have to be
mandatorily followed by organizations, both in the private and government
sector.

As per the Vishaka judgment,

‘Sexual Harassment’ includes such unwelcome sexually determined behavior
(whether directly or by implication) as:

Physical contact and A demand or request Sexually coloured

advances; for sexual favours; remarks;

Any other unwelcome

Showing physical, verbal or
pornography; nonverbal conduct of
sexual nature.

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OBJECT OF THE ACT

The Act has been enacted with the objective of preventing and protecting women
against workplace sexual harassment and to ensure effective redressal of
complaints of sexual harassment.

FORMS OF WORKPLACE SEXUAL HARASSMENT

Generally, workplace sexual harassment refers to Mo common forms of
inappropriate behaviour:
Quid Pro Quo (literally ‘this for
that’) - Implied or explicit Hostile Work Environment -
promise of Creating a hostile, intimidating
preferential/detrimental or an offensive work
treatment in employment - environment - Humiliating
Implied or express threat about treatment likely to affect her
her present or future health or safety.
employment status.
APPLICABILITY
The Act applies to both the organized and unorganized sectors (self-employed or
having less than 10 workers) in India. It inter alia, applies to government bodies,
private and public sector organizations, non-governmental organizations,
organizations carrying out commercial, vocational, educational, entertainment,
industrial, financial activities, hospitals and nursing homes, educational
institutes, sports institutions and stadiums used for training individuals and also
applies to a dwelling place or a house.

Aggrieved woman
“Aggrieved woman” means—

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;

in relation to a dwelling place or house, a woman of any age who

is employed in such a dwelling place or house. [Section 2(a)]
 20.4

Sexual harassment
“Sexual harassment” includes any one or more of the following unwelcome acts
or behaviour (whether directly or by implication) namely: –

physical contact and a demand or request making sexually

advances; or for sexual favours; or coloured remarks; or

any other unwelcome

physical, verbal or
showing
non-verbal conduct
pornography; or
of sexual nature.
[Section 2(n)]

The POSH Act defines ‘sexual harassment’ in line with the Supreme Court’s
definition of ‘sexual harassment’ in the Vishaka Judgment. The definition of
‘sexual harassment’ under the POSH Act is wide enough to cover both direct or
implied sexual conduct which may involve physical, verbal or even written
conduct. The key distinguishing feature is that the conduct is unwanted and
unwelcome by the recipient.

COMPLAINTS COMMITTEE
The Act provides for two kinds of complaints mechanisms:

Internal Complaints
Local Complaints
Committee (ICC);
Committee (LCC).
and

Constitution Internal Complaints Committee

According to section 4 the Act requires an employer to set up an ‘Internal
Complaints Committee’ (“ICC”) at each office or branch, of an organization
employing 10 or more employees, to hear and redress grievances pertaining to
sexual harassment. The section provides for the following regarding the ICC:

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Every employer of a workplace shall, by an order in writing, constitute a

Committee to be known as the “Internal Complaints Committee”:
Mandatory constitution of Internal Provided that where the offices or administrative units of the workplace
Complaints Committee by order in writing: are located at different places or divisional or sub-divisional level, the
Internal Committee shall be constituted at all administrative units or
offices.

Presiding Officer: a Presiding Officer who shall be a woman employed at

a senior level at workplace from amongst the employees. However, 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
referred to in sub-section.
Provided further that in case the other offices or administrative units of the
workplace do not have a senior level woman employee, the Presiding
Officer shall be nominated from any other workplace of the same employer
or other department or organisation;

Members: not less than two Members from

Composition of the ICC: The Internal amongst employees preferably committed to
Committee shall consist of the following the cause of women or who have had
members to be nominated by the experience in social work or have legal
employer, namely: — knowledge;

External member: one member from amongst

non-governmental organisations or associations
committed to the cause of women or a person
familiar with the issues relating to sexual
harassment:

Provided that at least one-half of the total

Members so nominated shall be women.

The Presiding Officer and every Member of

the Internal Committee shall hold office for
Tenure of office: such period, not exceeding three years, from
the date of their nomination as may be
specified by the employer.

The Member appointed from amongst the non-

governmental organisations or associations shall be
Fees of external members: paid such fees or allowances for holding the
proceedings of the Internal Committee, by the
employer, as may be prescribed.

contravenes the provisions of section 16; or

has been convicted for an offence or an

inquiry into an offence under any law for shall be removed from
the time being in force is pending against
Casual vacancy in the office of him; or the Committee and the
Presiding Officer or any vacancy so created or
member of Internal Committee: any casual vacancy shall
Where the Presiding Officer or
any Member of the Internal he has been found guilty in any be filled by fresh
Committee- disciplinary proceedings or a disciplinary nomination in
proceeding is pending against him; or
accordance with the
provisions of this
section.
has so abused his position as to render
his continuance in office prejudicial to the
public interest, such Presiding Officer or
Member, as the case may be,

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Constitution of Local Complaints Committee

At the district level, the Government is required to set up a ‘Local Complaints
Committee’ (“LCC”) to investigate and redress complaints of sexual harassment
from the unorganized sector or from establishments where the ICC has not been
constituted on account of the establishment having less than 10 employees or if
the complaint is against the employer. The LCC has special relevance in cases of
sexual harassment of domestic workers or where the complaint is against the
employer himself or a third party who is not an employee. The provisions of the
Act w.r.t. LCC are as follows:

(i) Notification of District Officer.

According to section 5, the Appropriate Government may notify a District
Magistrate or Additional District Magistrate or the Collector or Deputy Collector
as a District Officer for every District to exercise powers or discharge functions
under this Act.

(ii) Constitution and jurisdiction of Local Committee

According to section 6, every District Officer shall constitute in the district
concerned, a committee to be known as the “Local Committee” to receive
complaints of sexual harassment from establishments where the Internal
Committee has not been constituted due to having less than ten workers or if the
complaint is against the employer himself. The District Officer shall designate one
nodal officer in every block, taluka and tehsil in rural or tribal area and ward or
municipality in the urban area, to receive complaints and forward the same to
the concerned Local Committee within a period of seven days. The jurisdiction of
the Local Committee shall extend to the areas of the district where it is
constituted.

(iii) Composition, tenure and other terms and conditions of Local Committee
Pursuant to section 7, the Local Committee shall consist of the following members
to be nominated by the District Officer, namely:- —

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two Members, of whom at least

one shall be a woman, to be
a Chairperson to be nominated one Member to be nominated nominated from amongst such
from amongst the eminent from amongst the women non- governmental organisations
women in the field of social work working in block, taluka or tehsil or associations committed to the
and committed to the cause of or ward or municipality in the cause of women or a person
women; district; familiar with the issues relating
to sexual harassment, which
may be prescribed:

Provided that at least one of the nominees should, preferably, have a background
in law or legal knowledge. It is provided further that at least one of the
nominees shall be a woman belonging to the Scheduled Castes or the Scheduled
Tribes or the Other Backward Classes or minority community notified by the
Central Government, from time to time;

the concerned officer

dealing with the social
welfare or women and child
development in the district,
shall be a member ex
officio. [Section 7(1)]

Grants and Audit

In accordance with section 8, the Central Government may, after due appropriation
made by Parliament by law in this behalf, make to the State Government grants
of such sums of money as the Central Government may think fit, for being
utilised for the payment of fees or allowances referred to in section 7.

The State Government may set up an agency and transfer the grants so made to
that agency. The agency shall pay to the District Officer, such sums as may be
required for the payment of fees or allowances referred to section 7.

COMPLAINT
Complaint of Sexual harassment
Section 9 of the Act provides for the procedure for filing and hearing of
complaints under the Act as follows:

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Where the aggrieved woman is unable to

Any aggrieved woman may make, in writing, make a complaint on account of her physical
a complaint of sexual harassment at work or mental incapacity or death or otherwise,
place to the Internal Committee if so her legal heir or such other person as may
constituted, or the Local Committee, in case be prescribed may make a complaint under
it is not so constituted, within a period of this section. Where the aggrieved woman is
three months from the date of incident and unable to make a complaint on account of
in case of a series of incidents, within a her physical or mental incapacity or death or
period of three months from the date of last otherwise, her legal heir or such other
incident: person as may be prescribed may make a
complaint under this section.

CONCILIATION
According to section 10, the Internal Committee or, as the case may be, the Local
Committee, may, before initiating an inquiry under section 11 and at the request
of the aggrieved woman, take steps to settle the matter between her and the
respondent through conciliation. It is provided that no monetary settlement shall
be made as a basis of conciliation.

Where a settlement has been so arrived, the Internal Committee or the Local
Committee, as the case may be, shall record the settlement so arrived and
forward the same to the employer or the District Officer to take action as
specified in the recommendation.

Inquiry into Complaint

Section 11 of the Act states the procedure for conducting inquiry into the complaint
made under the Act. Subject to the provisions of section 10, the Internal
Committee or the Local Committee, as the case may be, shall, where the
respondent is an employee, proceed to make inquiry into the complaint in
accordance with the provisions of the service rules applicable to the respondent
and where no such rules exist, in such manner as may be prescribed or in case of
a domestic worker, the Local Committee shall, if prima facie case exist, forward
the complaint to the police, within a period of seven days for registering the
case under section 509 of the Indian Penal Code, and any other relevant
provisions of the said Code where applicable.
 20.9

The POSH Act stipulates that the ICC and LCC shall, while inquiring into a
complaint of workplace sexual harassment, have the same powers as vested in a
civil court under the Code of Civil Procedure, 1908 when trying a suit in respect
of:-

summoning and
enforcing the requiring the discovery
any other matter which
attendance of any and production of
may be prescribed.
person and examining documents; and
him on oath;

Such an inquiry shall be completed within a period of ninety days.

Action during pendency of inquiry.

Section 12 provides for the relief that can be given by IC to the aggrieved woman
during pendency of inquiry. During the pendency of an inquiry, on a written
request made by the aggrieved woman, the Internal Committee or the Local
Committee, as the case may be, may recommend to the employer to —
transfer the aggrieved grant leave to the grant such other relief
woman or the aggrieved woman up to the aggrieved
respondent to any to a period of three woman as may be
other workplace; or months; or prescribed.

The leave granted to the aggrieved woman under this section shall be in addition
to the leave she would be otherwise entitled.

Inquiry Report

Section 13 of the Act provides for the action report to be submitted by IC or LC

after conducting inquiry under the Act. On the completion of an inquiry under
this Act, the Internal Committee or the Local Committee, as the case may be,
shall provide a report of its findings to the employer, or as the case may be, the
District Officer within a period often days from the date of completion of the
inquiry and such report be made available to the concerned parties.
 20.10

Where the Internal Committee or the Local Committee, as the case may be, arrives
at the conclusion that the allegation against the respondent has been proved, it
shall recommend to the employer or the District Officer, as the case may be –
to deduct, notwithstanding anything in
to take action for sexual harassment as the service rules applicable to the
a misconduct in accordance with the respondent, from the salary or wages
provisions of the service rules of the respondent such sum as it may
applicable to the respondent or where consider appropriate to be paid to the
no such service rules have been made, aggrieved woman or to her legal heirs,
in such manner as may be prescribed; as it may determine, in accordance
with the provisions of section 15.

Punishment for false or malicious complaint and false evidence

It is provided that a mere inability to substantiate a complaint or provide adequate
proof need not attract action against the complainant under this section. It is
provided further that the malicious intent on part of the complainant shall be
established after an inquiry in accordance with the procedure prescribed, before
any action is recommended.

Where the Internal Committee or the Local Committee, as the case may be, arrives
at a conclusion that during the inquiry any witness has given false evidence or
produced any forged or misleading document, it may recommend to the
employer of the witness or the District Officer, as the case may be, to take
action in accordance with the provisions of the service rules applicable to the said
witness or where no such service rules exist, in such manner as may be
prescribed.

Determining of Compensation
Section 15 provides that for the purpose of determining the sums to be paid to the
aggrieved woman section 13, the Internal Committee or the Local Committee, as
the case may be, shall have regard to (a ) the mental trauma, pain, suffering and
emotional distress caused to the aggrieved woman; (b) the loss in the career
opportunity due to the incident of sexual harassment; (c ) medical expenses
incurred by the victim for physical or psychiatric treatment; (d) the income and
financial status of the respondent; (e ) feasibility of such payment in lump sum or

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 20.11

in installments.

Prohibition of publication or making known contents of complaint and inquiry

proceedings
According to section 16, Notwithstanding anything contained in the Right to
Information Act, 2005, the contents of the complaint made under section 9, the
identity and addresses of the aggrieved woman, respondent and witnesses, any
information relating to conciliation and inquiry proceedings, recommendations of
the Internal Committee or the Local Committee, as the case may be, and the
action taken by the employer or the District Officer under the provisions of this
Act shall not be published, communicated or made known to the public, press
and media in any manner.

It is provided that information may be disseminated regarding the justice secured

to any victim of sexual harassment under this Act without disclosing the name,
address, identity or any other particulars calculated to lead to the identification
of the aggrieved woman and witnesses.

Penalty for publication or making known contents of complaint and inquiry

proceedings
According to section 17, where any person entrusted with the duty to handle or
deal with the complaint, inquiry or any recommendations or action to be taken
under the provisions of this Act, contravenes the provisions of section 16, he
shall be liable for penalty in accordance with the provisions of the service rules
applicable to the said person or where no such service rules exist, in such
manner as may be prescribed.

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DUTIES OF EMPLOYER
Every employer shall —
organise workshops and
display at any conspicuous awareness programmes at
provide a safe working place in the workplace, the regular intervals for sensitising
environment at the workplace penal consequences of the employees with the
which shall include safety sexual harassments; and the provisions of the Act and
from the persons coming into order constituting, the Internal orientation programmes for the
contact at the workplace; Committee under sub-section members of the Internal
(I) of section 4; Committee in the manner as
may be prescribed;

make available such

provide necessary facilities to assist in securing the information to the Internal
the Internal Committee or the attendance of respondent Committee or the Local
Local Committee, as the case and witnesses before the Committee, as the case may
may be, for dealing with the Internal Committee or the be, as it may require having
complaint and conducting an Local Committee, as the case regard to the complaint made
inquiry; may be; under sub-section (1) of
section 9;

cause to initiate action, under the

provide assistance to the Indian Penal Code 1860 or any
woman if she so chooses to other law for the time being in
treat sexual harassment as a
file a complaint in relation to force, against the perpetrator, or if
misconduct under the service
the offence under the Indian the aggrieved woman so desires,
rules and initiate action for
Penal Code 1860 or any where the perpetrator is not an
such misconduct;
other law for the time being. employee, in the workplace at
in force; which the incident of sexual
harassment took place;

monitor the timely

submission of reports by the
Internal Committee.

Duties and Powers of Districts Officer

Section 20 cast upon the following mandatory duties on the District Officer who
shall, —

take such measures as may be

necessary for engaging non-
monitor the timely submission
governmental organisations for
of reports furnished by the
creation of awareness on sexual
Local Committee;
harassment and the rights of
the women.

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MISCELLANEOUS
Appropriate
Employer to include Poser to call for Penalty for non-
Committee to submit government to take
information in annual information and compliance with
annual report measures to publicise
report inspection of records provisions of Act
the Act

• According to section • According to section 22, • In accordance with • Section 25 lists out the • Section 26 provides for
21, the Internal the employer shall section 24, the power of the appropriate a penalty with a fine up
Committee or the include in its report the appropriate Government Government under the to rupees fifty thousand
number of cases filed, if may, subject to the Act. The appropriate where the employer fails
Local Committee, as any, and their disposal availability of financial Government, on being to-
the case may be, under this Act in the and other resources, — satisfied that it is a.constitute an Internal
shall in each annual report of his (a) develop relevant necessary in the public Committee under sub-
calendar year organisation or where information, education, interest or in the interest section (1) of section 4;
prepare, in such no such report is communication and of women employees at b.take action under
form and at such required to be prepared, training materials, and a workplace to do so, by sections 13, 14 and 22;
time as may be intimate such number of organise awareness order in writing, — and
prescribed, an
cases, if any, to the programmes, to • a. call upon any c.contravenes or
District Officer. advance the employer or District
annual report and attempts to contravene
• Appropriate understanding of the Officer to furnish in or abets contravention
submit the same to Government to monitor public of the provisions writing such information of other provisions of
the employer and the implementation and of this Act providing for relating to sexual this Act or any rules
District Officer. maintain data. protection against harassment as it may made there under.
• Pursuant to the sexual harassment of require;
• The District Officer woman at workplace, (b)
shall forward a brief provisions of section 23, b. authorise any officer to
the appropriate formulate orientation make inspection of the
report on the annual Government shall and training records and workplace
reports so received monitor the programmes for the in relation to sexual
to the State implementation of this members of the Local harassment, who shall
Government. Act and maintain data Committee. submit a report of such
on the number of cases inspection to it within
filed and disposed of in such period as may be
respect of all cases of specified in the order.
sexual harassment at • Every employer and
workplace. District Officer shall
produce on demand
before the officer
making the inspection
all information, records
and other documents in
his custody having a
bearing on the subject
matter of such
inspection.

Cognizance of offence by courts Act not in derogation of any other law

•According to section 27, every offence under this •Section 28 states that the purpose of the Act is to
Act are non-cognizable which means one cannot be provide additional safeguard to women at work.
arrested without a warrant. No court shall take According to the section, the provisions of this Act
cognizance of any offence punishable under this Act shall be in addition to and not in derogation of the
or any rules made there under, save on a complaint provisions of any other law for the time being in
made by the aggrieved woman or any person force.
authorised by the Internal Committee or Local
Committee in this behalf. No court inferior to that
of a Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any offence
punishable under this Act.
 20.14

the fees or allowances to be

paid to the Members under
sub-section (4) of section 4;

nomination of members
under clause (c) of sub-
section (I) of section 7;

the fees or allowances to be

paid to the Chairperson, and
Members under sub-section
(4) of section 7;

the person who may make

complaint under sub-section
(2) of section 9;

Section 29 states that the the manner of inquiry under

Central Government may, by sub-section (I) of section 11;
notification in the Official
Gazette, make rules for
carrying out the provisions of
this Act. In particular and the powers for making an
without prejudice to the inquiry under clause (c) of
generality of the foregoing sub-section (2) of section I I;
power, such rules may
provide for all or any of the
following matters, namely:- the relief to be
recommended under clause
Power of appropriate (c) of sub-section (I) of
government to make section 12;
rules
the manner of action to be
taken under clause (i) of sub-
section (3) of section 13;

the manner of action to be

taken under sub-sections (1)
and (2) of section 14;

the manner of action to be

taken under section 17;

the manner of appeal under

sub-section (1) of section 18;

the manner of organising workshops,

awareness programmes for sensitising
the employees and orientation
programmes for the members of the
Internal Committee under clause (c) of
section 19; and

The form and time for preparation of

annual report by Internal Committee and
the Local Committee under sub-section (I)
of section 21.

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In 2019, POSH saw an amendment. In general notification issued by Women Development and
Child Welfare Department it stated that all businesses in Telangana with ten or more employees
are required to register their IC with the State Shebox portal by no later than July 15, 2019. This
was done in an effort to help officials better monitor local firms’ compliance levels, this is being
done.
Maharashtra government also mandated all companies to complete and submit to the Sub-
Divisional Magistrate by July 20, 2019, a form explaining their compliance status and internal
committee.

DOMESTIC WORKER
Domestic worker means women who has employed in household work but does not
include family member of employer.

INQUIRY INTO COMPLAIN

ICC or LCC shall make inquiry into complain and in case of domestic worker LCC shall
forward complain to police within 7 days.
• Under inquiry ICC and LCC have power to –
1. Summoning & enforcing the attendance of any person and examining him on oath
2. Requiring the discovery and production of document.
Inquiry shall be completed in 90 days

WORKPLACE
Workplace has been defined as the private sector organization, private venture,
undertaking, enterprise, institution, society, trust, NGO, Unit or service provider and
places visited by employee, including transportation.

CASE: SAURABH KUMAR MALIK COMPTROLLER AND GENERAL OF INDIA

• Respondent was accused of sexual harassment of senior women officer at
official mess where women was deciding.
• It was argued by respondent that it is not a sexual harassment has misconduct
place this is not a workplace and no favour could be extracted as complainant
as senior.
• Delhi court held that official mess fall under workplace

UNIQUE ACADEMY FOR COMMERCE SBILL CS SHUBHAM MODI