Chapter 3(G) The Sexual Harassment of Women at Workplace Act, 2013 – CS Professional Labour Laws and Practice Notes is designed strictly as per the latest syllabus and exam pattern.
The Sexual Harassment of Women at Workplace Act, 2013 – CS Professional Labour Laws and Practice Study Material
Question 1.
What is the ambit of workplace as defined under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ? (June 2019, 6 marks)
Answer:
According to section 2(o) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, “workplace” includes:
(a) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;
(b) any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainment, industrial, health services or financial activities including production, supply, sale, distribution or service;
(c) hospitals or nursing homes;
(d) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;
(e) any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey;
(f) a dwelling place or a house;
Under Section 2(6), Workplace has been defined as private sector organisation/private venture/undertaking/enterprise/institution/establishment / society / trust / non-governmental organisation / unit or service provider and places visited by employee (arising out of or during the course of employment, including transportation provided by employer for undertaking journey). Hence, if harassment takes place even during transportation or during a lunch meeting at a restaurant, the same will be covered under the Act.
In the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India, the High Court observed that the following factors would have bearing on determining whether the act has occurred in the ‘workplace’:
- Proximity from the place of work;
- Control of the management over such a place/residence where the working woman is residing; and
- Such a residence has to be an extension or contiguous part of the working place.
Question 2.
Highlight the importance of “Vishaka Judgement” in enactment of “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013”. (Dec 2021, 6 marks)
Answer:
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 judgment initiated a nationwide discourse on workplace sexual harassment and threw out wide open an issue that was swept under the carpet for the longest time. The first case before the Supreme Court after Vishaka in this respect was the case of Apparel Export Promotion Council v. A.K Chopra,(1999) 1 SCC 759.
In this case, the Supreme Court reiterated the law laid down in the Vishaka Judgment and upheld the dismissal of a superior officer of the Delhi based Apparel Export Promotion Council who was found guilty of sexually harassing a subordinate female employee at the workplace.
In light of the above judgment, the very first efforts, towards implementing a law for protection of women from sexual harassment at workplace, were taken in 2007 when the Protection of Women against Sexual Harassment at Workplace Bill, 2007, was introduced in the Parliament.
However, this Bill never saw the light of the day. On December 7, 2010, the Protection of Women against Sexual Harassment at work place Bill, 2010 (the “Original Bill”) was introduced in Lok Sabha and was referred to a Parliamentary Standing Committee on Human Resource Development, led by Shri Oscar Fernandes (“Standing Committee”), on December 30,2010 for examination, and the Standing Committee came out with its report in December, 2011.
Further to the report, subsequent changes were made to the Original Bill, including to the title of the Bill, which was changed to Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013 (the “Bill”).
India’s first legislation specifically addressing the issue of workplace sexual harassment; the Sexual Harassment of Women at Work place (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) was enacted by the Ministry of Women and Child Development, India in 2013 – after 16 years of the Supreme Court judgment in the case of Vishaka & Ors. vs. State of Rajasthan & Ors. (1997 (7) SCC 323). The Act came into force w.e.f. 9th December, 2013.
Question 3.
Casual Company Limited was being headed and run by Mr. Questionable, its Chairman cum Managing Director (CMD) from his residence. He used to come to the office only in cases of emergency and if there was some important business requiring his physical presence, he was assisted by Miss Victim who was his personal secretary.
The personal secretary wanted to complain about objectionable acts by her boss, but there was no internal complaints committee in the organisation. Also she was not comfortable in making the complaint directly due to mental stress. She was also advised that no action can be taken against her boss, as the wrongful act was done at the ‘residence’ of the boss and not at the workplace. Advise. (Dec 2019, 6 marks)
Answer:
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted to ensure a safe working environment for women. It provides for protection to women at their workplace from any form of sexual harassment and for redressal of any complaints they may have launched.
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.
In terms of Section 2(o) of the Act workplace includes private sector organisation / private venture / undertaking / enterprise / institution / establishment / society / trust / non-governmental organisation / unit or service provider and places visited by employee (arising out of or during the course of employment, including transportation provided by employer for undertaking journey). Hence, if harassment takes place even during transportation or during a lunch meeting at a restaurant, the same will be covered under the Act.
If the office is being run by Chairman cum Managing Director (CMD) from his residence and if such an officer indulges in an act of sexual harassment with an employee, say the personal secretary, it would not be appropriate for him to say that the he had not committed the act at workplace, but at the residence and get away with the same.
Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or her relative or friend or her coworker an officer of the national or State Commission for Women or any person who has knowledge of the incident, with the written consent of aggrieved woman may make a complaint to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted.
Question 4.
Case Study : (June 2022)
ABC & Associates, Company Secretaries (ABC Firm) is a partnership firm having 5 partners. Each of the partners are Fellow member of the Institute of Company Secretaries of India. ABC is having presence in Mumbai.
All the 5 partners (all male) are having industry exposures and specialised in Secretarial Audits, Direct and Indirect Taxation, Company Formation, RoC related matters, FEMA and all other compliances related matters. All the partners are also Insolvency Professionals and Registered Valuers enrolled with the Insolvency and Bankruptcy Board of India.
The ABC Firm is also having some management trainees and paid employees and total staff strength is 38 (20 Management Trainees and 18 Professional employees).
Among the 20 Management Trainees (MT), Shanaya, one of the MT, who is a young lady, takes leave on and often, pretending some stories. The work assigned to her also used to get suffer and her immediate boss was also not satisfied with her working. In every CS Exam time, she used to take leave of at least one month in advance, but with no good result. Even in office hours, it was being observed that she used to chat with her friends on mobile and surfing on social sites on the office PCs/Laptops.
Shanaya was given a task to collect data from some of the clients in order to file their GST Returns. But as usual, she did not collected the required information and due to this the clients were fined for delayed filing of the returns. Her boss Narendra warned her not to repeat such incidences and be serious in attending the official work.
The ABC Firm used to have an office meeting on every Saturday at 4 pm. On 9th October, 2021, the office meeting was scheduled and all the MTs and employees were present to show their report card i.e. ‘Work Done Report’ during the week, and Plan for the next week. Each of the MT/Employee was categorically analysed individually and appropriate instructions were being given. When the Shanaya’s turn came, Narendra (her boss) expressed his displeasure regarding the working of Shanaya and narrated the financial loss suffered by the clients. The Managing Partner (Vikram Singh) of the firm asked Shanaya, to be more vigilant in meeting out the statutory obligations, in order to maintain the reputation of the firm.
This time, Shanaya took it very seriously and after a few days later, she approached Vikram Singh (Managing Partner of the ABC Firm) alleging that Narendra is sexually harassing her. She denied of not given the task of collecting and filing of the GST Returns and delayed filing of returns, was the sole responsibility of Narendra and not of her. She said that Narendra on and often calls her, in his cabin and speaks the un-desirable languages. She also showed some WhatsApp chat which was shared from Narendra’s Mobile to Shanaya’s Mobile, containing some explicit languages. Due to these reason, she does not like to come in the office and feel ashamed.
Vikram Singh, calmly listened her and asked her to make a written complaint. He called on Narendra in the evening (when all the office staff left) and discussed the matter in length and to submit his comments.
Incidentally, the whole of the office was under the supervision of the CCTV cameras. The recordings were kept safely in a separate device. The comments of the other MTs and the Staff were also recorded. From the CCTV recordings, a video footage was observed. Narendra was called by one client on his mobile asking for some information for which Shanaya was having the information.
So Narendra came out of his cabin and handed over his mobile to Shanaya, to talk with that client. Shanaya took the advantage of this moment and sent some explicit language from Narendra’s Mobile to her own mobile and then deleted the messages from Narendra’s mobile. Shanaya was showed this CCTV footage, when she was holding the mobile of Narendra and typing something. She later committed that it was done by her only, since Narendra has made negative comments on her working in the office meeting.
Base on the above facts, answer the following questions:
(a) Whether the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH) is applicable to the office of Company Secretaries?
(b) Who shall be termed as ‘employer’ in this case?
(c) What is the meaning of ‘sexual harassment’ as prescribed in the Act?
(d) The provisions of the POSH Act are applicable only when the aggrieved woman is employed. Do you agree with this? Comment.
(e) What are the consequence, if any wrong complaint is made by woman? (8 marks each)
Question 5.
What is the rationale for enacting The Sexual Harassment of Women at Workplace Act, 2013
Answer:
- The Sexual Harassment of Women at Workplace Act was passed in the year 2013
- It is applicable to whole of India.
- The objective of the Act was enacted to provide a safe working environment for women.
- It provides for protection to women at their workplace from any form of sexual harassment and for redressal of any complaints they may have launched.
- It is also referred as POSH Act (Prevention of Sexual Harassment) Act.
Question 6.
How is the term Sexual Harassment defined and give reference of the case when the term Sexual Harassment was first coined.
Answer:
- Sexual harassment means any Unwelcome acts of behaviour (whether direct or implied) namely
- physical contact and advances
- Demand or request for sexual favours
- Making sexually coloured remarks
- Showing pornography
- Any other unwelcome physical, verbal or non- verbal conduct of sexual nature.
- Sexual harassment was first defined in the landmark judgement of Vishakha v. State of Rajasthan
- In the said case Supreme Court framed certain guidelines and issued directions to the Union of India to enact an appropriate law for combating workplace sexual harassment.
- The Vishaka judgment initiated a nationwide discourse on workplace sexual harassment and resulted in the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
- The Act mandates the constitution of an Internal Complaints Committee (ICC) by the employer in every one of his offices and also mandates that the Presiding Officer shall be a woman.
- The Act also mandates for the constitution of a Local Complaints Committee (LCC) which receives complaints from establishments where ICC has not been constituted due to having less than 10 workers or if the complaint is against the employer himself.
Question 7.
What are the various forms of Sexual Harassment?
Answer:
Workplace sexual harassment refers to two common forms of inappropriate behaviour:
- Quid Pro Quo
- Implied or explicit promise of preferential/detrimental treatment in employment
- Hostile Work Environment
- Creating a hostile environment by humiliating treatment likely to affect her health or safety.
Question 8.
Who is an aggrieved woman?
Answer:
- Aggrieved woman is defined under Section 2(a) of Sexual Harassment Act.
- Aggrieved woman in relation to the following means:
- 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;
- House/ Dwelling
- a woman of any age who is employed in such house or a dwelling place
- Workplace:
Question 9.
What are the various committees as per POSH Act?
Answer:
- The two committees to be constituted as per POSH Act are
- Internal Complaints Committee (ICC)
- Local Complaints Committee (LCC)
- IC
- Every office or branch of an organization with 10 or more employees, to constitute an Internal Complaints Committee.
- The said committee should hear and redress grievances pertaining to sexual harassment in the organisation.
- LC
- Govt at district level to constitute a Local Complaints Committee with respect to covering employees of organization withless than 10 employees or with respect to employees of unorganised sector.
- The said committee should hear and redress grievances pertaining to sexual harassment in the organisation.
Question 10.
What are the procedure for making complaint under POSH Act?
Answer:
- Any aggrieved woman can make a written complaint of sexual harassment at work place to the ICC (Internal Complaints Committee), if it exists or to the LCC(Local Complaints Committee)
- The ICC or LCC, as the case may be , assist in case the complainant cannot make the complaint in writing .
- C mplaint has to be made within a period of three months from the date of last incident.
- The ICC or LCC, as the case may be, can admit a complaint beyond the period of 3 months , if they are satisfied for the reasons.
- Were the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.
Question 11.
What are the various duties of employer as per the POSH Act?
Answer:
- Section 19 of the POSH Act cast certain responsibilities on the employer.
- Various duties of the Employer are:
- Provide a safe working environment at the workplace
- Display the constitution of the Internal Complaints Committee and penal consequences of sexual harassments
- Provide necessary facilities to the Internal Committee or the Local Committee for dealing with the complaint and conducting an inquiry
- Organise workshops and awareness programmes at regular intervals
- Make available information to the Internal Committee or the Local Committee,;
- Provide assistance to the woman if she decides to file complaint in relation to the offence
- Treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct
- Monitor the timely submission of reports by the Internal Committee.
Question 12.
What are the details to be captured in Annual Report ?
Answer:
- The Complaints Committee shall be required to prepare an Annual Report
- Following details should be captured.-
- Number of complaints of sexual harassment received in the year
- Number of complaints disposed off during the year
- Number of cases pending for more than ninety days;
- Number of workshops or awareness programme against sexual harassment carried out;
- Nature of action taken by the employer or District Officer be considered necessary;
- Declare the names and contact details of all the Members of the Internal Committee.
The Sexual Harassment of Women at Workplace Act, 2013 Notes
Sexual Harassment
- Sexual Harassment has been defined under Section 2(n) of the Act
- It includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely: –
- physical contact and advances
- a demand or request for sexual favours
- making sexually coloured remarks
- showing pornography
- any other unwelcome physical, verbal or non-verbal conduct of sexual nature
Various forms of Sexual Harassment
Workplace sexual harassment refers to two common forms of inappropriate behaviour:
Quid Pro Quo
- Implied or explicit promise of preferential/detrimental treatment in employment
Hostile Work Environment
- Creating a hostile environment by humiliating treatment likely to affect her health or safety.
Committees as per POSH Act
Committees to be constituted as per POSH Act are
- Internal Complaints Committee (ICC)
- Local Complaints Committee (LCC)
ICC:
- Every office or branch of an organization with 10 or more employees, to constitute an Internal Complaints Committee.
- The said committee should hear and redress grievances pertaining to sexual harassment in the organisation.
LCC:
- Govt at district level to constitute a Local Complaints Committee with respect to covering employees of organization with less than 10 employees or with respect to employees of unorganised sector.
- The said committee should hear and redress grievances pertaining to sexual harassment in the organisation.
Complaint under POSH Act
- Any aggrieved woman can make a written complaint of sexual harassment at work place to the ICC (Internal Complaints Committee), if it exists or to the LCC (Local Complaints Committee)
- The ICC or LCC, as the case may be , assist in case the complainant cannot make the complaint in writing.
- Complaint has to be made within a period of three months from the date of last incident
- The ICC or LCC, as the case may be, can admit a complaint beyond the period of 3 months , if they are satisfied for the reasons.
- Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir Or such other person as may be prescribed may make a complaint under this section.