Though sexual harassment is recognized and noticed, it is usually observed that women hesitate to file a complaint against it, and one of the major reasons for this is that they are not very aware of the complaint mechanism. Thus, let us understand the complaint mechanism under the POSH Act.
Brief introduction of the Act
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), as suggested by the name itself, objects to prevention, prohibition, and redressal of the matters of sexual harassment of women at the workplace. It is formulated on the guidelines of the Convention on Elimination of All Forms of Discrimination against Women, 1979, and the principles of Articles 14, 15 & 21 of the Constitution of India.
Who can file a complaint?
The Act under Section 2(a) defines ‘Aggrieved Woman’, and all those women who come under the ambit of the definition can file a complaint. It is believed that only a woman who is an employee of the organization can file a complaint but the definition expressly mentions that even a woman who is not an employee can file a complaint. Thus, even a female visitor at the reception who is anyhow sexually harassed can file a complaint. Thus, all the below-mentioned females can file a complaint:
- An employee
- A visitor to the office
- Client or a Vendor
- Housekeeping and maintenance staff
- Intern
- Volunteer
- Temporary worker
Notably, the complaint may even be filed by any other person on behalf of above-mentioned persons.
Against whom the complaint can be filed
The POSH Act though provides remedy only to the women who are harassed but it does not protect the female perpetrators. The definition of Respondent under Section 2(m) mentions the word ‘person’ which is gender neutral and thus, any woman who harasses another woman is a potential respondent for the complaint to be filed under this Act.
To whom the complaint is to be made
The complaint can be filed in writing to the ‘Internal Complaints Committee’ of the organization or the ‘Local Committee’ of the district (in case the workplace has less than 10 employees or the complaint is against the employer) within 3 months from the incidence or the last incidence if it is continuing in nature.
The woman can even file a Police Complaint along with the complaint to the Internal Complaints Committee or the Local Committee.
The process ahead
Once the complaint is filed, the woman can request the ICC/LC to initiate a conciliation into the matter and if the respondent agrees to it, the ICC/LC initiates a conciliation proceeding between the aggrieved woman and the respondent. However, the terms of settlement shall not be based on monetary settlement between the parties.
If the conciliation is not requested or is not agreed by the respondent, the ICC/LC initiates an inquiry in the matter and enjoys the power of a Civil Court for the matters related to summons, attendance of witnesses, discovery of documents etc. During this period the woman may be granted certain interim reliefs like:
- 3 months leave (in addition to the leave she is already entitled to),
- restraining the respondent from reporting of performance of the aggrieved woman
- her transfer to another establishment, and so on.
The ICC/LC has to file the enquiry report within 10 days from the completion of the enquiry to the Employer or the District Officer, as applicable, and has to furnish the copies of the report even to the parties of the complaint.
The ICC has to make certain recommendations to the employer based on the findings of the enquiry:
Where respondent found guilty
The ICC can recommend the following actions to be taken against the person based on the severity of the actions:
- Written apology
- Warning
- Reprimand/Censure
- Withholding of promotion or pay rise
- Deduction of compensation payable to the aggrieved woman from the salary of the respondent
- Termination
- Community service or counseling
Where respondent not found guilty
If it is found that the complaint was filed with a malicious intent or knowing the allegations to be false, the ICC can even recommend the employer to punish the complainant for false complaint in the manner provided in the service rules or through any of the punishments mentioned above. However, mere inability to prove the allegations does not constitute the offence of false complaint but clear proof of malicious intent is necessary.
Contributed by – Adv. Shivam Mani Tripathi