Section 9 of the Posh Act in India: Understanding the Implications for Employers and Employees

Who can complain?

Complaint against an act of sexual harassment can be filed by the aggrieved woman herself.

In case of physical incapacity of the aggrieved woman, the complaint can be filed with the written consent of the complainant by the complainant’s relative or friend, Co worker, Officer of NCW or SCW or any person who has knowledge of the incident.

In the case of mental incapacity of the aggrieved woman, the complaint can be filed by the complainant’s relative or friend, Special educator, Qualified psychiatrist/psychologist, Guardian/authority under whose care the complainant is receiving treatment/care or any person with knowledge of the incident, jointly with any person mentioned above.

In case of Complainant’s death any person with knowledge of the incident can file the complaint with the written consent of her legal heir.

In case Complainant is unable to file the complaint for any other reason, the complaint can be filed by any person who has knowledge of the incident with written consent of the aggrieved woman.

Where can the complained be filed ?

The Act provides for two kinds of complaints mechanisms: Internal Complaints Committee (ICC) and Local Complaints Committee (LCC). All Complaints Committees must have 50 per cent representation of women. ICC or LCC members will hold their position not exceeding three years from the date of their nomination or appointment.

What should the complaint contain?

The written complaint should contain a description of each incident(s). It should include relevant dates, timings and locations; name of the respondent(s); and the working relationship between the parties. A person designated to manage the workplace sexual harassment complaint is required to provide assistance in writing of the complaint if the complainant seeks it for any reason.

Implications of Section 9 of The Act for Employees

The Act specifies the punishment for the offense of sexual harassment. According to this section, any person who is found guilty of sexual harassment shall be punished with imprisonment for a term that can extend up to three years. The offender may also be liable to pay a fine.

The punishment for the offense of sexual harassment is severe, and it reflects the seriousness with which the government views this issue. It is essential to note that the punishment is not limited to the workplace. Sexual harassment can occur anywhere, and the offender can be punished under Section 9, irrespective of the location of the offense.

Implications of Section 9 of The Act for Employers

Employers have a responsibility to provide a safe and harassment-free workplace for their employees. The Act places an additional burden on employers to prevent sexual harassment at the workplace. Employers need to take measures to ensure that sexual harassment does not occur at the workplace, and if it does, they need to take action to address the issue.

Employers can take several measures to prevent sexual harassment at the workplace. They can conduct awareness programs for their employees, implement a code of conduct, and set up a mechanism for redressal of complaints. Employers should also take action against the offenders and ensure that they are punished for their actions.

If an employer is found to be negligent in preventing sexual harassment at the workplace, they can be held liable under Section 9 of The Act. Employers need to take this issue seriously and take measures to prevent sexual harassment at the workplace.

Prevention of Sexual Harassment at the Workplace

Prevention is better than cure, and this is true in the case of sexual harassment as well. Employers and employees need to take measures to prevent sexual harassment at the workplace. As per Section 19 of the Act, every employer shall:

• Provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace
• Create and communicate a detailed policy about Prevention, Prohibition & Redressal of Sexual Harassment
• Constitute Complaints Committee in the workplace so that every working woman is provided with a mechanism for redress of her complaint
• Display at any conspicuous place in the workplace, the penal consequences of sexual harassments and the order constituting the ICC
• Organize workshops and awareness programmes at regular intervals for sensitising the employees with the Act
• Organize orientation programmes for the members of the ICC to ensure that Complaints Committees are trained in both skill and capacity
• Provide necessary facilities to the ICC or the LCC for dealing with the complaint and conducting an inquiry
• Assist in securing the attendance of respondent and witness before the ICC or the LCC
• Make available such information to the ICC or the LCC with regard to the complaint
• Provide assistance to the woman if she chooses to file a complaint under IPC or any other law
• Cause to initiate action under the IPC or any other law 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
• Treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct
• Monitor the timely submission of reports by the ICC
• Prepare an annual report and report to the respective state government

What if the Employer fails in his duties?

An employer can be subjected to a penalty of up to INR 50,000 for their failure to constitute Internal Complaints Committee; or failure to act upon recommendations of the Complaints Committee; or failure to file an annual report to the District Officer where required; or contravening or attempting to contravene or abetting contravention of the Act or Rules.

Where an employer repeats a breach under the Act, they shall be subject to twice the punishment or higher punishment if prescribed under any other law for the same offence; or cancellation/Withdrawal/Non-renewal of registration/license required for carrying on business or activities.

Why Prevention is Key

Prevention is the key to ensuring a safe and harassment-free workplace. Employers and employees should work together to prevent sexual harassment. Employers should take proactive measures to prevent sexual harassment and provide a safe working environment for their employees. Employees should also be vigilant and report any instance of sexual harassment. By working together only, a harassment-free workplace can be created.