Prevention of Sexual Harassment at Workplace

MUMBAI SILICON VALLE Y BENG ALURU SING APORE NE W DELHI MUNICH / AMSTERDAM NE W YORK GIF T CIT Y
Research
Prevention
of Sexual
Harassment at
the Workplace
(POSH)
Legal & HR Considerations
October 2023
© Nishith Desai Associates 2023 www.nishithdesai.com

Research
Prevention
of Sexual
Harassment at
the Workplace
(POSH)
October 2023
© Nishith Desai Associates 2023 [email protected]

Ranked as the ‘Most Innovative Indian Law Firm’ in the prestigious FT Innovative Lawyers Asia Pacific
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Prevention of Sexual Harassment at the Workplace (POSH) — Legal & HR Considerations
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Acknowledgements
Vikram Shroff
[email protected]
Sayantani Saha
[email protected]
Nipasha Mahanta
[email protected]
Vivek Ilawat
[email protected]
© Nishith Desai Associates 2023 Provided upon request only

Contents
1. INTRODUCTION 01
2. EVOLUTION OF THE LAW ON WORKPLACE SEXUAL HARASSMENT 02
I. The Vishaka Judgement 02

II. Post Vishaka – Some Other Judgments 03
3. KEY PROVISIONS OF THE POSH ACT 05
I. Applicability and scope 05

II. What amounts to Sexual Harassment? 06
III. Employee 07
IV. Workplace 07
V. Complaints Committee 08
VI. Complaint mechanism 10
VII. Conciliation 11
VIII. Redressal process/Inquiry 11
IX. Interim Reliefs 12
X. Punishment and compensation 13
XI. Frivolous complaints 13
XIl. Confidentiality 14
XIII. Consequences of non-compliance 14
4. EMPLOYER’S DUTIES AND OBLIGATIONS 15
“Prevention is better than Cure” 15
5. EXAMPLES OF CONDUCT AMOUNTING TO SEXUAL HARASSMENT 17
6. OTHER LAWS PERTAINING TO WORKPLACE SEXUAL HARASSMENT 19
I. Industrial Employment (Standing Orders) Act, 1946 19

II. Indian Penal Code, 1860 19
7. FREQUENTLY ASKED QUESTIONS FOR HR 21
ANNEXURE I 22
Hotline: Court Decides not to Interfere with Decision of Internal

Complaints Committee Set up by Employer 22
ANNEXURE II 25
Sexual Harassment Committee - Time for a Change! 25
ANNEXURE III 27
Bombay Chartered Accountants’ Society - India’s Law on Prevention of

Sexual Harassment at the Workplace 27

ANNEXURE IV 29
Sexual Harassment at Workplace: Indian Government Introduces Platform

for Female Employees to File Complaints 29
ANNEXURE V 33
India’s Law On Workplace Sexual Harassment: Recent Judicial Interpretations 33
ANNEXURE VI 36
India’s Law On Prevention of Sexual Harassment at Workplace: Analysis of

Recent Case Laws - Part 2 36
ANNEXURE VII 40
India’s Law on Prevention of Sexual Harassment at Workplace:

Analysis of Recent Case Laws - Part 3 40

1. Introduction
Long bygone are the days when men used to be the sole bread-winners of a family. Globalization has brought a radical
change in the status of women worldwide. However, with the larger influx of women in the mainstream workforce
of India, sexual harassment at workplace has assumed greater dimensions.
Workplace sexual harassment is a form of gender discrimination which violates a woman’s fundamental right
to equality and right to life, guaranteed under Articles 14, 15 and 21 of the Constitution of India (“Constitution”).
Workplace sexual harassment not only creates an insecure and hostile working environment for women but also
impedes their ability to deliver in today’s competing world. Apart from interfering with their performance at
work, it also adversely affects their social and economic growth 1 and puts them through physical and emotional
suffering.
India’s first legislation specifically addressing the issue of workplace sexual harassment; the Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) was enacted by the Ministry
of Women and Child Development, India in 2013. The Government also subsequently notified the rules under the
POSH Act titled the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules,
2013 (“POSH Rules”). The year 2013 also witnessed the promulgation of the Criminal Law (Amendment) Act, 2013
(“Criminal Law Amendment Act”) which has criminalized offences such as sexual harassment, stalking and
voyeurism.
The POSH 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. While the statute aims
at providing every woman (irrespective of her age or employment status) a safe, secure and dignified working
environment, free from all forms of harassment, proper implementation of the provisions of the statute remains a
challenge.
Although the law preventing sexual harassment at workplace has been in force since 2013, there remains lack of
clarity on various aspects pertaining to the statute, including what constitutes sexual harassment, obligations of
an employer, remedies/safeguards available to the victim, procedure of investigation, etc. Many are also not fully
aware of the criminal consequences of sexual harassment. Lewd jokes, inappropriate comments etc. are dismissed
as normal, with women being hesitant to initiate actions due to apprehension of being disbelieved or ridiculed;
which underpins the need for greater awareness and greater enforcement.
Any tool would be useless if the person operating it is unaware of the way it is to be used. Therefore, the objective of
this booklet is to serve as a ready reckoner to all the stakeholders and re-educate them on the law relating to work-
place sexual harassment.
This booklet focusses mainly on the POSH Act and other relevant laws in India pertaining to workplace sexual
harassment. Further, the objective of this booklet is to create more awareness on the issue and simultaneously
equip employers in providing women a safe and secure working environment. The booklet also discusses the
importance of ‘prevention’ as the best tool for elimination of this menace in a multi-cultural society as ours.
1 Statement of Objects and Reasons, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
© Nishith Desai Associates 2023 Provided upon request only 1

2. Evolution of The Law on Workplace Sexual

Harassment
The elimination of gender-based discrimination has been one of the fundamentals of the Constitutional edifice
of India. 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 (“Supreme Court”) in its landmark judgment of Vishaka v. State of
Rajasthan 2 (“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. Nothing less of an
irony, the POSH Act and the POSH Rules was enacted 16 years after the Vishaka Judgement.
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
POSH Act.
I. 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 marriage. 3
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 under the
banner of Vishaka.
The Supreme Court for the first time, acknowledged the glaring legislative inadequacy and acknowledged work-
place sexual harassment as a human rights violation. In framing the Vishaka Guidelines, the Supreme Court
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 Judg-
ment, 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:
a. Physical contact and advances
b. A demand or request for sexual favours;
c. Sexually coloured remarks;
d. Showing pornography;
e. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
2 1997 6 SCC 241: AIR 1997 SC 3011

3 Indira Jaising, Law Relating to Sexual Harassment at the Workplace (2014)

2. Evolution of The Law on Workplace Sexual Harassment
Where any of these acts are committed in circumstances under which the victim of such conduct has a reasonable
apprehension that in relation to the victim’s employment or work (whether she is drawing salary or honorarium or
voluntary service, whether in government, public or private enterprise), such conduct can be humiliating and may
constitute a health and safety problem, it amounts to sexual harassment in the workplace. It is discriminatory, for
instance, when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with
her employment or work (including recruiting and promotion), or when it creates a hostile working environment. Adverse
consequences might result if the victim does not consent to the conduct in question or raises any objection thereto.’
II. Post Vishaka – Some Other Judgments

A.Apparel Export Promotion Council v. A.K Chopra
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. 4 In this case, the Supreme Court reit-
erated 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 this judgment, the Supreme Court enlarged the definition of sexual harassment by ruling that
physical contact was not essential for it to amount to an act of sexual harassment. The Supreme Court explained
that “sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual
favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when
submission to or rejection of such conduct by the female employee was capable of being used for affecting the employment
of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimi-
dating or hostile work environment for her.”
B. Medha Kotwal Lele & Ors. V. Union of India & Ors.

A letter written by Dr. Medha Kotwal of Aalochana (an NGO) highlighted a number of individual cases of sexual
harassment stating that the Vishaka Guidelines were not being effectively implemented. Converting the letter into
a writ petition, the Supreme Court took cognizance and undertook monitoring of implementation of the Vishaka
Guidelines across the country by directing state governments to file affidavits emphasizing on the steps taken by
them to implement the Vishaka Guidelines. In its judgment, the Supreme Court observed that “the implementation
of the Vishaka Guidelines has to be not only in form but also in substance and spirit so as to make available safe and secure
environment for women at workplace in every aspect and thereby enabling working women to work with dignity, decency
and due respect.’ Not being satisfied with the implementation of the Vishaka Guidelines, it directed states to put in
place sufficient mechanisms to ensure effective implementation of the Vishaka Guidelines. Finally, the Supreme
Court asserted that in case of a non-compliance or non-adherence of the Vishaka Guidelines, it would be open to the
aggrieved persons to approach the respective High Courts.
4 (1999) 1 SCC 759

2. Evolution of The Law on Workplace Sexual Harassment
Legislative Timeline of POSH Act & POSH Rules

2007 Draft Protection of Women against Sexual Harassment at Workplace Bill, 2007 (“Bill”) approved by the
Union Cabinet.
2010 The Bill was introduced in the Lok Sabha.
2012 The Bill was amended and re-introduced in the Lok Sabha.
September The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
03, 2012 Re-dressal) Bill, 2012 was passed by the Lok Sabha
February The Sexual Harassment of Women at Workplace (Prevention, Prohibition and
26, 2013 Re-dressal) Bill, 2012 was passed by the Rajya Sabha.
April 23, The POSH Act received the President’s assent and was published in the Gazette of India as Act No. 14 of
2013 2013.
December The Indian Ministry of Women and Child Development notified
09, 2013 December 09, 2013 as the effective date of the POSH Act and the POSH Rules.

3. Key Provisions of the POSH Act
I. Applicability and scope

§ Applicable Jurisdiction: The POSH Act extends to the ‘whole of India’. 5
§ Aggrieved Woman: As per the POSH Act, an ‘aggrieved woman’ in relation to a workplace, is a woman of any
age, whether employed or not, who alleges to have been subjected to any act of sexual harassment. 6 Given that
the definition does not necessitate the woman to be an employee, even a customer/client who may be sexu-
ally harassed at a workplace can claim protection under the POSH Act. The POSH Act further stipulates that a
woman shall not be subjected to sexual harassment at her workplace. 7 Accordingly, it may be noted that inorder
for a woman to claim protection under the POSH Act, the incident of sexual harassment should have taken
place at the ‘workplace’.
§ The POSH Act is not a gender-neutral legislation and protects only women. Therefore, the safeguards under the
POSH Act are not applicable to ‘men’ victims although employers may choose to extend the protection through
their policy.
Aggrieved
Woman
Visiting a
Working Workplace Student
Contract
Regular/ For Employed
worker/
Domestic Temporary/ remuneration/ directly/
probationer/
Worker Adhoc/ Daily voluntary basis/ through an
trainee/
wager otherwise agent
apprentice
5 Section 1 of the POSH Act

6 Section 2(a) of the Prevention of Workplace Sexual Harassment Act
7 Section 3 of the Prevention of Workplace Sexual Harassment Act

§ Covered bodies: The POSH Act applies to both the organized and unorganized sectors 8 in India. It inter alia,
applies to government bodies, private and public sector organizations, non-governmental organizations, organi-
zations carrying out commercial, vocational, educational, entertainment, industrial, financial activities, hospi-
tals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals
and also applies to a dwelling place or a house. 9
II. What amounts to Sexual Harassment?

The POSH Act defines ‘sexual harassment’ in line with the Supreme Court’s definition of ‘sexual harassment’ in
the Vishaka Judgment. As per the POSH Act, ‘sexual harassment’ includes unwelcome sexually tinted behaviour,
whether directly or by implication, such as (i) physical contact and advances, (ii) demand or request for sexual
favours, (iii) making sexually coloured remarks, (iv) showing pornography, or (v) any other unwelcome physical,
verbal or non-verbal conduct of a sexual nature. 10
The following circumstances, among other circumstances, if they occur or are present in relation to or connected
with any act or behaviour of sexual harassment may amount
to sexual harassment:
§ implied or explicit promise of preferential treatment in employment;
§ implied or explicit threat of detrimental treatment in employment;
§ implied or explicit threat about present or future employment status;
§ interference with work or creating an intimidating or offensive or hostile work environment; or
§ humiliating treatment likely to affect the lady employee’s health or safety. 11
As you would note from above, 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. It includes quid pro quo
sexual harassment, a form of sexual blackmail (which if translated in English, would mean ‘this for that’). In a
typical situation of quid pro quo harassment, the respondent being a person in power, pressurizes the woman
employee (usually a subordinate) for sexual favours in exchange for advancement in the workplace or threat of
adverse employment action. The definition also includes reference to creating an ‘intimidate, offensive or hostile
working environment’. An example would be a work environment where an individual is subject to unwelcome
comments about her body type resulting in the woman employee feeling embarrassed and unable to work properly.
While some forms of sexual harassment such as sexual assault are inherently offensive and egregious, and
may need to occur only once for it to be treated as ‘sexual harassment’, some other forms may not be easily
distinguishable. Since there is no fine line test in determining what would amount to a ‘hostile working
environment’, the burden will lie on the internal committee to decide whether the harassment suffered by a victim
is sufficiently severe to have created a hostile working environment or not. Further, determining what constitutes
‘sexual harassment’ depends upon the specific facts and the context in which the conduct has occured.
8 Having less than 10 workers

9 Section 2(o) of the Prevention of Workplace Sexual Harassment Act
10 Section 2(n) of the Prevention of Workplace Sexual Harassment Act
11 Section 3(2) of the Prevention of Workplace Sexual Harassment Act

In 2010, the High Court of Delhi 12 endorsed the view that sexual harassment is a subjective experience and for that
reason held “A complete understanding of the complainant’s view requires... an analysis of the different perspectives of
men and women. Conduct that many men consider unobjectionable may offend many women... Men tend to view some
forms of sexual harassment as “harmless social interactions to which only overly-sensitive women would object. The
characteristically male view depicts sexual harassment as comparatively harmless amusement.... Men, who are rarely
victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the
underlying threat of violence that a woman may perceive.”
Please refer to Chapter 5 for examples of conduct that amounts to ‘sexual harassment’.
III. Employee
The definition of an ‘employee’ under the POSH Act is fairly wide to cover regular, temporary, ad hoc employees,
individuals engaged on a daily wage basis, either directly or through an agent, contract labourers, co-workers,
probationers, trainees, and apprentices, with or without the knowledge of the principal employer, whether for
remuneration or not, working on a voluntary basis or otherwise, whether the terms of employment are express or
implied. 13
IV. Workplace
While the Vishaka Guidelines were confined to the traditional office set-up, recognizing the fact that sexual harass-
ment may not necessarily be limited to the primary place of employment, the POSH Act has introduced the concept
of an ‘extended workplace’. As per the POSH Act, ‘workplace’ includes any place visited by the employee arising
out of or during the course of employment, including transportation provided by the employer for the purpose of
commuting to and from the place of employment. 14
In the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India, 15 the respondent who was facing
departmental inquiry for allegedly indulging in sexual harassment of his senior woman officer contended that he
could not be accused of sexual harassment at workplace as the alleged misconduct took place not at the workplace
but at an official mess where the woman officer was residing. It was also argued that the complainant was even
senior to the respondent and therefore no ‘favour’ could be extracted by the respondent from the complainant
and thus the alleged act would not constitute ‘sexual harassment’. The Delhi Court while considering this matter
held this as ‘clearly misconceived’. The Delhi Court observed that ‘the aim and objective of formulating the Vishaka
Guidelines was obvious in order to ensure that sexual harassment of working women is prevented and any person guilty
of such an act is dealt with sternly. Keeping in view the objective behind the judgment, a narrow and pedantic approach
cannot be taken in defining the term ‘workplace’ by confining the meaning to the commonly understood expression “office”.
It is imperative to take into consideration the recent trend which has emerged with the advent of computer and internet
technology and advancement of information technology. A person can interact or do business conference with another
person while sitting in some other country by way of video-conferencing. It has also become a trend that the office is being
12 Dr. Punita K. Sodhi v. Union of India & Ors. W.P. (C) 367/2009 & CMS 828, 11426/2009
13 Section 2(f) of the Prevention of Workplace Sexual Harassment Act
14 Section2(o) of the Prevention of Workplace Sexual Harassment Act
15 Decided on May 9, 2008 [Citation not available]

run by CEOs from their residence. In a case like this, if such an officer indulges in an act of sexual harassment with an
employee, say, his private secretary, it would not be open for him to say that he had not committed the act at ‘workplace’
but at his ‘residence’ and get away with the same. Noting the above, 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.
In conclusion, the Delhi High Court held that the official mess where the employee was alleged to have been sexu-
ally harassed definitely falls under ‘workplace’.
V. Complaints Committee
An important feature of the POSH Act is that it envisages the setting up of a grievance redressal forum.
A.Internal Committee 16
The POSH Act requires an employer to set up an ‘internal committee’ (“IC”) at each office or branch, of an
organization employing 10 or more employees, to hear and redress grievances pertaining to sexual harassment. 17
Failure to constitute the IC has led to imposition of a fine under the POSH Act. 18
B. Constitution of the IC
Presiding Officer Woman employed at a senior level at the workplace from amongst the employees.
Members Not less than 2 members from amongst employees.

Preferably committed to the cause of women or who have had experience in social work or have
legal knowledge.
External member From an NGO or association committed to the cause of women or person familiar with issues
relating to sexual harassment. 19
Not less than half of the IC Members shall be women
The term of the IC Members shall not exceed 3 years
A minimum of 3 Members of the IC including the Presiding Officer are to be present for conducting the inquiry.
16 As per Repealing and Amending Act, 2016, the nomenclature of Internal Complaints Committee was changed to Internal Committee.
18 Global Health Private Limited & Mr. Arvinder Bagga v. Local Complaints Committee, District Indore and Others (W.P.No.22314 and 22317 of 2017)
19 A person who has expertise on issues relating to sexual harassment and includes a social worker with atleast 5 years of experience in the field
of social work towards empowerment of women and in particular in addressing workplace sexual harassment; or someone who is familiar with
labour, service, civil or criminal law (as per Rule 4 of the POSH Rules).

C. Registration of the IC
The Department of Women and Child Development of Telangana and Maharashtra has issued a circular (on
01.07.2019 for Telangana) and an office order (on 23.03.2017 for Mumbai) mandating registration of the IC in
Telangana & Mumbai.
While employers in Mumbai were required to register their ICs with the office of the District Women and Child
Development Officer in the prescribed format, employers in the state of Telangana were required to register their
ICs on the Sexual Harassment Electronic Box (“T-she box”).
SOME PRACTICAL TIPS FOR HR / IC CONSTITUTION
§ As far as possible, the IC should comprise of women members who have been trained on the POSH Act and POSH
Rules and their roles and responsibilities;
§ It is preferable to have an odd number of members in order for the IC to arrive at a decision based on majority in case
of a divided opinion.
§ The IC members should be selected based on evaluation of various factors including whether they are accessible,
approachable, committed, sensitive and understanding.
§ They should be sensitive to issues pertaining to gender-based violence and should have good credibility and technical
competency to handle grievance procedures.
§ The functioning of the IC should be made autonomous such that there is no scope of allegations of bias or favour-
itism.
§ As far as possible, provide the IC separate space for conducting their meetings and maintaining records of cases of
sexual harassment.
§ Hold periodic discussions between the IC members and conduct regular trainings.
D.Local Committee 20
At the district level, the government is required to set up a ‘local committee’ (“LC”) to investigate and redress
complaints of sexual harassment from the unorganized sector or from establishments where
the IC has not been constituted on account of the establishment having less than 10 employees or if the complaint
is against the employer. 21 The LC 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.
20 As per Repealing and Amending Act, 2016, the nomenclature of Local Complaints Committee was changed to Local Committee.

Constitution of the LC
Chairperson An eminent woman in the field of social work and committed to the cause of women.
Local Woman One of the members to be nominated from amongst the women working in block, taluka, tehsil or
ward or municipality in the district.
NGO members Two members, out of which, atleast one shall be a woman to be nominated from a NGO or an
association committed to the cause of women or a person familiar with issues pertaining to sexual
harassment
§ Atleast one of the members should have a background in law.
§ Atleast one of the members should be a woman belonging to the Scheduled Castes or Sched-
uled Tribes.
E. Powers of the IC/LC

The POSH Act stipulates that the IC and LC 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:
i. summoning and enforcing the attendance of any person and examining him on oath;
ii. requiring the discovery and production of documents; and
iii. any other matter which may be prescribed. 22
VI. Complaint Mechanism

An aggrieved woman who intends to file a complaint is required to submit six copies of the written complaint,
along with supporting documents and names and addresses of the witnesses to the IC or LC, within 3 months from
the date of the incident and in case of a series of incidents, within a period of 3 months from the date of the last
incident. Prompt reporting of an act of sexual harassment is probably as important as swift action to be taken by the
authorities on receiving a complaint. Infact the more prompt the complaint is, the more authentic can it be treated.
In instances where sufficient cause is demonstrated by the complainant for the delay in filing the complaint, the
IC/LC may extend the timeline for filing the complaint, for reasons to be recorded in-writing. The law also makes
provisions for friends, relatives, co-workers, psychologist & psychiatrists, etc. to file the complaint in situations
where the aggrieved woman is unable to make the complaint on account of physical incapacity, mental incapacity
or death. 23 Given that the POSH Act and the POSH Rules do not prescribe any format in which the complaint needs
to be filed, the following tips may be kept in mind:
22 Section 11(3) of the Prevention of Workplace Sexual Harassment Act


A WELL DRAFTED COMPLAINT

§ The complaint should be addressed to the IC members and not the employer/HR representative.
§ The complaint should be concise, i.e. it should be written in simple language which can be understood easily.
Complaints that are well written and presented properly have greater credibility.
§ Details of exact incident, date and time, witness etc. to be included.
§ Circumstances preceding and following the incident to be recorded.
§ Whether the complainant asked the respondent to desist from the unwelcome act(s).
§ Append as many documents as possible in whatever format i.e. relevant e-mails, screenshots of SMS’s/whatsapp
messages, call details, photographs, recordings etc.
§ Details of the respondent including name, designation, reporting structure between complainant and respondent if
any (whether subordinate, colleague or superior).
§ Do not state any fact that is false or incorrect.
§ The relief that is sought from the employer.
VII. Conciliation
Before initiating action on a complaint, the IC on the request of the aggrieved woman, can make efforts to settle the
matter between the parties through conciliation by bringing about an amicable settlement. Conciliation is basi-
cally an informal method of resolving complaints before the complaint escalates into a fully blown formal inquiry.
Thus, after a complaint of sexual harassment has been lodged, the aggrieved woman may request the IC to resolve
the matter by conciliating between the parties before commencement of the inquiry proceedings, although mone-
tary settlement should not be made as a basis of conciliation. 24
Once the settlement has been arrived at, the IC or the LC (as the case maybe) shall record the settlement arrived at
and thereafter provide copies of the settlement to the aggrieved woman as well as the respondent. Once a settle-
ment has been arrived at, the IC shall not proceed with an inquiry under the POSH Act.
VIII. Redressal Process/Inquiry

Please refer to the flowchart below which provides an overview of the process to be followed by the aggrieved
employee to make the complaint and by the IC/LC to inquire into the complaint.

Incident of sexual
harassment at
workplace
Timelines
Written complaints (6 copies) along with supporting
documents and names and addresses of witnesses have
to be filed within 3 months of the date of the incident.
Timeline extendable by another 3 months.
Internal
Conciliation Committee / Upon receipt of the complaint, 1 copy of the complaint is
Local Committee to be sent to the respondent within 7 days.
Upon receipt of the copy of complaint, the respondent

is required to reply to the complaint along with a list
of supporting documents, and names and addresses of
Report of inquiry witnesses within 10 working days.
The Inquiry has to be completed within a total of 90 days

from the receipt of the complaint.
Punishment
The Inquiry report has to be issued within 10 days from
for malicious
the date of completion of inquiry.
Action for No action by
or false The employer is required to act on the recommendations
misconduct employer
complaint/ of the IC/LC within 60 days of receipt of the Inquiry
evidence report.
Appeal against the decision of the committee is allowed

within 90 days from the date of recommendations.
Appeal to Court
/ Tribunal
IX. Interim Reliefs

At the request of the complainant, the IC or the LC (as the case maybe) may recommend to the employer to provide
interim measures such as:
i. transfer of the aggrieved woman or the respondent to any other workplace;
ii. granting leave to the aggrieved woman up to a period of 3 months in addition to her regular statutory/
contractual leave entitlement;
iii. restrain the respondent from reporting on the work performance of the aggrieved woman or writing her
confidential report, which duties may be transferred to other employees.

X. Punishment and compensation

The POSH Act prescribes the following punishments that may be imposed by an employer on an employee for
indulging in an act of sexual harassment:
i. punishment prescribed under the service rules of the organization;
ii. if the organization does not have service rules, disciplinary action including written apology, warning, repri-
mand, censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent
from service, undergoing a counselling session, or carrying out community service; and
iii. deduction of compensation payable to the aggrieved woman from the wages of the respondent. 25
The POSH Act also envisages payment of compensation to the aggrieved woman. The compensation payable shall
be determined based on:
i. the mental trauma, pain, suffering and emotional distress caused to the aggrieved employee;
ii. the loss in career opportunity due to the incident of sexual harassment;
iii. medical expenses incurred by the victim for physical/ psychiatric treatment;
iv. the income and status of the alleged perpetrator; and
v. feasibility of such payment in lump sum or in installments. 26
In the event that the respondent fails to pay the aforesaid sum, IC may forward the order for recovery of the sum as
an arrear of land revenue to the concerned District Officer.
XI. Frivolous complaints

In order to ensure that the protections envisaged under the POSH Act are not misused, provisions for action against
“false or malicious” complainants have been included in the statute. As per the POSH Act, if the IC/LC concludes
that the allegation made by the complainant is false or malicious or the complaint has been made knowing it to be
untrue or forged or misleading information has been provided during the inquiry, disciplinary action in accord-
ance with the service rules of the organisation can be taken against such complainant.
Where the organisation does not have service rules, the statute provides that disciplinary action such as written
apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increments,
terminating the respondent from service, undergoing a counselling session, or carrying out community service
may be taken. The POSH Act further clarifies that the mere inability to substantiate a complaint or provide
adequate proof need not mean that the complaint is false or malicious. 27


XIl. Confidentiality
Recognising the sensitivity attached to matters pertaining to sexual harassment, the POSH Act attaches significant
importance to ensuring that the complaint and connected information are kept confidential. The POSH Act
specifically stipulates that information pertaining to workplace sexual harassment shall not be subject to the
provisions of the Right to Information Act, 2005.
The POSH Act further prohibits dissemination of the contents of the complaint, the identity and addresses of
the complainant, respondent, witnesses, any information relating to conciliation and inquiry proceedings,
recommendations of the IC/LC and the action taken to the public, press and media in any manner. That said, the
POSH Act allows dissemination of information pertaining to the justice that has been secured to any victim of
sexual harassment, without disclosing the name, address, identity or any other particulars which could result
in the identification of the complainant or the witnesses. 28 Disclosure of the justice secured could not only deter
other individuals from engaging in acts of sexual harassment, but also instil in the minds of employees and public
that the employer is serious about providing a safe work environment and harbours zero tolerance for any form of
sexual harassment at the workplace. 29
Breach of the obligation to maintain confidentiality by a person entrusted with the duty to handle or deal with
the complaint or conduct the inquiry, or make recommendations or take actions under the statute, is punishable
in accordance with the provisions of the service rules applicable to the said person or where no such service rules
exist, a fine of INR 5,000 (approx. US$70). 30
XIII.Consequences of non-compliance
If an employer fails to constitute an IC or does not comply with the requirements prescribed under the POSH Act,
a monetary penalty of up to INR 50,000 (approx. US$ 700) may be imposed. A repetition of the same offence could
result in the punishment being doubled and/or de-registration of the entity or revocation of any statutory business
licenses. It is however unclear as to which business licenses are being referred to in this case. 31 It is also pertinent to note
that all offences under POSH Act are non-cognizable. 32

29 Shivangi Prasad and Attreyi Mukherjee, Handbook on the law of Sexual Harassment at Workplace 179 (2015)
30 Section 17 of the Prevention of Workplace Sexual Harassment Act and Rule 12 of the Prevention of Sexual Harassment Rules

4. Employer’s Duties and Obligations
“Prevention is better than Cure”

In addition to requiring an employer to set up an IC and ensure redressal of grievances of workplace harassment in
a time bound manner, the POSH Act casts certain other obligations upon an employer which includes:
a. Promoting a gender sensitive workplace and removing the underlying factors that contribute towards
creating a hostile working environment against women;
b. provide a safe working environment;
c. formulate and widely disseminate an internal policy or charter or resolution or declaration for prohibition,
prevention and redressal of sexual harassment at the workplace;
d. display conspicuously at the workplace, the penal consequences of indulging in acts that may constitute
sexual harassment and the composition of the IC;
e. declare the names and contact details of all members of the IC;
f. organize workshops and awareness programmes at regular intervals for sensitizing employees on the issues
and implications of workplace sexual harassment and organizing orientation programmes for members of
the IC;
g. provide necessary facilities to the IC for dealing with the complaint and conducting an inquiry;
h. cause to initiate action, under the Indian Penal Code, 1860 (“IPC”) or any other law in force, against the
perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the work-
place at which the incident of sexual harassment took place;
i. provide assistance to the aggrieved woman if she so chooses to file a complaint in relation to the offence
under the IPC or any other law for the time being in force;
j. treat sexual harassment as a misconduct under the service rules and initiate action for misconduct;
k. prepare an annual report with details on the number of cases filed and their disposal and submit the same
to the District Officer;
l. monitor the timely submission of reports by the IC.

4. Employer’s Duties and Obligations
The Anti-Sexual Harassment Policy – Some tips to follow
§ Clearly define ‘sexual harassment’ and outline the scope and applicability (gender neutral or not);
§ Mention how the employer practices zero-tolerance towards sexual harassment at workplace;
§ Extended concept of workplace;
§ Complaint mechanism;
§ Regularly distribute and promote the policy at all levels of the organization;
§ Ensure that the policy is easily accessible;
§ Provide a copy of the policy to new joinees as part of their induction;
§ Review the policy periodically & update information regarding IC members etc. on a timely basis.

5. Examples of Conduct Amounting to Sexual

Harassment
Whether an act or conduct would amount to ‘sexual harassment’ is dependent on the specifics of the act and the
circumstances. The following is an indicative list of conduct that could be considered as sexual harassment:
1. Unwanted sexual advances or propositions;
2. Pestering for dates or receiving unwelcome sexual suggestions or invitations;
3. Offering employment benefits in exchange for sexual favours;
4. Leering;
5. Making sexual gestures;
6. Displaying sexually suggestive objects or pictures, cartoons, calendars or posters;
7. Making or using derogatory comments, comments about a person’s body or dress, slurs, epithets or sexually
suggestive jokes;
8. Written communications of a sexual nature distributed in hard copy or via a computer network, suggestive or
obscene letters, notes or invitations;
9. Physical conduct such as unwanted touching, assault, impeding or blocking movements;
10. Being forcibly kissed or hugged;
11. Having someone expose their private parts to you or repeatedly staring at a woman’s body parts that makes her
uncomfortable;
12. Making or threatening retaliation after a negative response to sexual advances or for reporting or threatening
to report sexual harassment;
13. Eve-teasing;
14. Sexually tinted remarks, whistling, staring, sexually slanted and obscene jokes, jokes causing or likely to cause
awkwardness or embarrassment;
15. Subtle innuendoes or open taunting regarding perfection, imperfection or characteristics of physical
appearance of a person’s body or shape;
16. Gender based insults and/or sexist remarks;
17. Displaying pornographic or other sexually offensive or derogatory material;
18. Forcible invitations for dates;
19. Forcible physical touch or physical assault or molestation;
20. Suggesting or implying that failure to accept a request for a date or sexual favours would adversely affect the
individual in respect to performance evaluation or promotion;
21. Explicitly or implicitly suggesting sexual favours in return for hiring, compensation, promotion, retention
decision, relocation, or allocation of job/responsibility/work;

5. Examples of Conduct Amounting to Sexual Harassment
22. Any act or conduct by a person in authority and belonging to one sex which denies or would deny equal
opportunity in pursuit of career development or otherwise making the environment at the work place hostile
or intimidating to a person belonging to the other sex, only on the ground of such individual providing or
refusing sexual favours;
23. Physical confinement against one’s will and any other act likely to violate one’s privacy.

6. Other Laws Pertaining to Workplace Sexual

Harassment
I. Industrial Employment (Standing Orders) Act, 1946 33
The Industrial Employment (Standing Orders) Act, 1946 (“Standing Orders Act”) is a central enactment which,
inter alia, requires an employer to define and publish uniform conditions of employment in the form of standing
orders. As per the statute, the standing orders should contain terms of employment including, hours of work, wage
rates, shift working, attendance and late coming, provision for leaves and holidays and termination or suspension/
dismissal of employees.
At the first instance, the Standing Orders Act is applicable to ‘industrial establishments employing a minimum
of 100 workmen. The Standing Orders Act prescribes Model Standing Orders, serving as guidelines for employers
and in the event that an employer has not framed and certified its own standing orders, the provisions of the Model
Standing Orders shall be applicable.
The Model Standing Orders prescribed under the Industrial Employment (Standing Orders) Central Rules, 1996
(“Standing Orders Rules”) prescribe a list of acts constituting ‘misconduct’ and specifically includes sexual
harassment. The Model Standing Orders not only defines ‘sexual harassment’ in line with the definition under
the Vishaka Judgment, but also envisages the requirement to set up a complaints committee for redressal of griev-
ances pertaining to workplace sexual harassment. It is interesting to note that ‘sexual harassment’ is not limited to
women under the Standing Orders Rules.
II. Indian Penal Code, 1860

Conduct that may be construed as sexual harassment not only violates the Prevention of Workplace Sexual Harass-
ment Act, but also could constitute an offence under the IPC. Listed out below are the key offenses under the IPC
that could be triggered in a case of sexual harassment.
Section # Offence Punishment Cognizable/

Non-Cognizable
354 Outraging the modesty of a woman Simple/Rigorous Imprisonment for Cognizable
a term which shall not be less than
Assault or use of criminal force to one year but which may extend to five
any woman, intending to outrage or years; and fine
knowing it to be likely that modesty
would be outraged.
33 This law is proposed to be replaced by the Code on Industrial Relations, 2020.

6. Other Laws Pertaining to Workplace Sexual Harassment
354-A Sexual harassment by a man Offences (i), (ii) and (iii) are punishable Cognizable
with rigorous imprisonment for a term
i. Physical contact and advances involving which may extend to three years, or
unwelcome and explicit sexual overtures; with fine, or with both.
ii. Demand or request for sexual favours; Offence (iv) is punishable with simple/
rigorous imprisonment for a term which
iii. Showing pornography against the will of may extend to one year, or with fine, or
a woman; or with both.
iv. making sexually coloured remarks.

354-B Assault or use of criminal force to Simple/Rigorous imprisonment for a Cognizable
woman with intent to disrobe term which shall not be less than three
years but which may extend to seven
Assault or use of criminal force to any years and fine.
woman or abetment of such act with
the intention of disrobing or compelling
her to be naked.
354-C Voyeurism First conviction: Simple/ Rigorous Cognizable
imprisonment for a term which shall not
Watching, or capturing the image be less than one year, but which may
of a woman engaging in a private extend to three years, and fine.
act in circumstances where she
would usually have the expectation Second or subsequent conviction:
of not being observed either by the Simple/ Rigorous imprisonment for a
perpetrator or by any other person term which shall not be less than three
at the behest of the perpetrator or years, but which may extend to seven
disseminates such image. years, and fine.
354-D Stalking First conviction: Simple/ Rigorous Cognizable
imprisonment for a term which may
Following a woman and contacting or extend to three years, and fine;
attempting to contact such woman to
foster personal interaction repeatedly Second or subsequent conviction:
despite a clear indication of disinterest Simple/ Rigorous imprisonment for a
by such woman; or Monitoring the term which may extend to five years
use by a woman of the internet, and fine.
email or any other form of electronic
communication.
509 Insulting the modesty of Simple imprisonment for Cognizable
a woman a term which may extend to three
years, and fine.
Uttering any word, making any sound
or gesture, or exhibiting any object,
intending that such word or sound
shall be heard, or that such gesture
or object shall be seen, by a woman,
with an intention to insult her modesty,
or intruding upon the privacy of such
woman.

7. Frequently Asked Questions for HR

1. Can both men and women be victims of workplace sexual harassment?
Yes, both men and women can be victims of sexual harassment. However, the safeguards/protection under the
POSH Act is available only to women.
2. Can verbal conduct amount to sexual harassment?
Verbal harassment that is sexually coloured can constitute sexual harassment. Words can be just as offensive
as physical acts and contact. Sexually coloured jokes, comments and stories can be sexually harassing and can
create a hostile work environment.
3. Is the employer responsible if an employee is sexually harassed at a company-sponsored event (a)

during working hours and (b) outside of working hours?
The POSH Act introduces the concept of ‘extended workplace’ covering under its ambit 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. Hence, any form of sexual harassment at a company-sponsored event
whether within or outside of the normal working hours would also fall under the scope of the POSH Act.
4. When is an establishment required to constitute an IC?
Every establishment having 10 or more employees is required to constitute an IC.
5. Is an IC required to be constituted at every branch/office?
Yes, an IC is required to be set up at every branch/office of the company wherein at least 10 employees are
employed.
6. Can the complaint be filed with and inquired by the HR manager of the company?
No, the complaint needs to be filed with and inquired into by the IC.
7. Is there a time limit for filing a complaint of sexual harassment?
A complaint of sexual harassment needs to be filed within 3 months of the date of incident and in case of a
series of incidents, within a period of 3 months from the date of the last incident. However, the IC or the LC,
as the case may be, may extend the time limit, however, not exceeding 3 months, for reasons to be recorded in
writing if it is satisfied that the circumstances were such that the victim was unable to file a complaint within
the said period.
8. Can a complaint of sexual harassment be conciliated/mediated between the parties?
Yes (at the request of the aggrieved woman), but no monetary settlement shall be allowed.

Annexure I
Hotline: Court Decides not to Interfere with Decision of
Internal Complaints Committee Set up by Employer
§ Court does not interfere with the order of punishment by Disciplinary Authority unless it is shockingly
disproportionate to the act of misconduct.
§ Court does not re-appreciate evidence once the Committee has conducted a domestic enquiry.
§ Employer to have proper mechanism for prevention and redressal of sexual harassment complaints and to
create greater awareness regarding gender sensitization at workplaces.
The Bombay High Court (“Court”) ruled that it would not interfere with an order of punishment passed by
the Internal Complaints Committee (“ICC”) in relation to a sexual harassment complaint, unless the order is
shockingly disproportionate.
The Court passed this judgment in the case of Vidya Akhave (“Petitioner”) v. Union of India and Ors 34 in relation
to the new Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 of India
(“Sexual Harassment Act”).
The Court observed that the employer must sufficiently comply with the duties cast upon it under the Sexual
Harassment Act. The Court also stated that (a) an employer must provide for an effective mechanism for prevention
of sexual harassment of women at workplace; (b) male employees must be sensitized towards the concerns of female
employees and (c) the ICC must deal with complaints of sexual harassment in an expedited manner.
I. Facts
The employee (petitioner) was employed with an Indian government owned development bank. She had
filed a complaint of sexual harassment against the General Manager, who was her immediate superior officer
(“Supervisor”). However, no action was taken by the employer. Thereafter, the employee filed another complaint
seeking establishment of an ICC as was necessary to be set up, as per the law laid down by the Supreme Court in the
case of Vishakha v. State of Rajasthan. 35
As for the incidents that took place before February/March 2012, the limitation period of three months prescribed
under the Sexual Harassment Act had expired and thus, were not taken into account by the ICC. However, the
Human Resource department could take separate action based on those instances, which would be beyond the
scope of the Sexual Harassment Act. Based on the ICC’s report, the Disciplinary Authority passed an order, by
which the Supervisor was (a) demoted to a lower rank by two ranks; (b) transferred to another city and (c) received
a pay cut as per his lower rank (“Order”).
34 Writ Petition 796 of 2015

35 AIR 1996 SC 1

Annexure I
II. Contentions
The employee however challenged the validity of the Order before the Court under Article 226 of the Constitution
of India (“Constitution”). The employee contended that a higher punishment should be imposed on the
Supervisor. Also, the employee challenged the validity of the observations of the ICC as it had not adequately taken
on record all evidences. Also, the Supervisor had not been declared guilty under the Sexual Harassment Act and a
mere condemnatory statement was made by the Disciplinary Authority against the Supervisor. As for expiration
of the period of limitation, the employee argued that because the Supervisor was her immediate superior, she was
under reasonable apprehension to file a complaint as it would endanger her career.
The Supervisor argued that the penalty imposed was harsh enough as a result of which the Supervisor had suffered
psychologically and financially. It was contended that the Supervisor had to stay apart from his family, as he had to
shift to another city. It was further contended that it was not open to the Court to re-appreciate the evidence once
the Disciplinary Committee had considered it and ruled over it. Lastly, it was contended that the Court cannot look
into the proportionality of the Order passed by a Disciplinary Committee.
III. Judgment
The Court referred to its decision in Om Kumar v Union of India 36 and reaffirmed the principles of judicial restraint
to be exercised by courts under Article 226 of the Constitution. The Court held that unless the Order is shockingly
disproportionate to the act of the delinquent employee, it will be circumspect in interfering with the Order.
Reiterating the decision of Om Kumar, the Court held that interference is warranted only when there is non–
compliance of the principles of administrative law, Wednesbury Principles and doctrine of proportionality by the
Disciplinary Authority.
As for compliance with the Wednesbury Principles, interference was held to be not permissible unless any of the
following conditions were satisfied: (a) the Order was contrary to law, (b) relevant factors were not considered, (c)
irrelevant factors were considered and (d) no reasonable person would have taken such a decision.
Under the principle of proportionality, the Court stated that it would have to be seen whether the legislature and
administrative authority maintained a proper balance between the adverse effects which the legislation or order
may have on the rights, liberties or interests of persons, keeping in mind the purpose which they were intended to
serve. The Court also observed that the inquiry by the Disciplinary Authority was conducted dispassionately and
all evidences were appropriately considered and ruled upon in a fair and proper manner. Therefore, the Court was
not entitled to give a second opinion merely because it had the discretion to do so.
However, the Court felt that there was a need to have an effective mechanism in place at workplaces for addressing
issues of sexual harassment of women. The Court also observed that male employees must be made aware of
concerns of female employees by undertaking an exercise of gender sensitization as more and more women were
becoming part of the national workforce and contributing to the national economy. The Court also remarked as to
how many companies, corporations and government undertakings have not complied with the Sexual Harassment
Act and do not have an adequate mechanism to deal with issues of sexual harassment.
36 (2001) 2 SCC 386

Annexure I
IV. Analysis
This judgment reaffirms the importance and powers of the ICC that is required to be formed under the Sexual
Harassment Act. Given the sensitivities surrounding sexual harassment allegations, it is important that the ICC
is trained to deal with such cases in a fair, proper and dispassionate manner and based on the principles of natural
justice. It is also necessary for the ICC to ensure that it completes the investigation and issues its order within the
time frame set under the law.
The judgment also clarifies the already enshrined principles of judicial restraint by the courts. The interference of
the courts should be limited to ensuring that there are no procedural irregularities or violations of principles of
natural justice. Once the ICC has adequately and appropriately addressed a complaint of sexual harassment, it is not
open to the courts to look into the merits of the matter.

Annexure II
Sexual Harassment Committee - Time for a Change!
This article was first published on SHRM (India) website on February 9, 2017.
India’s new sexual harassment law is now more than three years old. And that should serve as a reminder to start
the process to change the members of your Internal Complaints Committee (ICC).
India’s Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (Sexual
Harassment Act) was notified in December 2013. The law has been a catalyst in creating greater awareness of the
issue of sexual harassment at the workplace. It has also given huge confidence to female employees to report any
adverse incidents. Progressive employers on their part have gone to great lengths to implement the law, not just in
form but also in spirit.
The Sexual Harassment Act requires the employer to constitute an ICC at every office location having a minimum
of 10 employees. The law prescribes the details on how the members of the ICC need to be nominated by the
employer based on their seniority, experience and familiarity with issues relating to sexual harassment.
The law allows the Presiding Officer and other members of the ICC to hold office for up to 3 years. Assuming most
employers set up their ICC in or after December 2013, as per the Sexual Harassment Act, its time they initiate the
process of replacing the members of their ICC.
Accordingly, in the next couple of months, employers should identify and start training the new members. The
training should be in terms of the provisions of law, requirements of the employer’s anti-harassment policy and
charter, investigation process and timelines, manner of collecting and documenting evidence, ways of examining
the parties (including witnesses), drafting the report and its conclusion, types of penalties that may be levied,
etc. Employers should also focus on helping their new members develop soft skills in terms of dealing with the
complainant and the respondent. To the extent the existing ICC has undergone a training programme, a similar
initiative should also be extended to the new members. Subject to complying with confidentiality obligations,
the employer may also request the existing ICC to include the new members as ‘observers’ in some of the ongoing
matters being investigated by the ICC, as part of their training.
But this change is unlikely to be an easy process. While some employers and their ICCs are still getting familiar
with the requirements of the Sexual Harassment Act, its already time to change the members. In a way, the process
followed by employers in December 2013 will need to be repeated.
Some of the questions that are likely to arise while implementing the change are:
1. Does the employer need to change the entire ICC at one go or gradually, especially to retain continuity?
2. Can the employer extend the term of an existing member of the ICC to another 3 years?
3. What happens if the employer is unable to identify an appropriate Presiding Officer of the ICC, given the
importance of such a role?

Annexure II
4. Does the employer also need to change the external member on the ICC who may be appointed from a non-gov-
ernmental organisation or association committed to the cause of women?
5. What happens to complaints that are being investigated by the existing ICC and likely to continue for some
more time?
6. What if another complaint is received in relation to a matter that has been previously investigated and closed
by the existing ICC?
7. Can there be two ICCs constituted in parallel - the current ICC to complete investigations relating to existing
complaints while the other for any new complaints?
8. How will the new ICC prepare the annual report if they are not familiar with the previous complaints?
All answers may not be easily available at this stage. There may also be a need to consider some of these questions
on a case-by-case basis given the sensitivities involved. At the end of the day, while taking any decision, employers
must ensure that the intent and principles of the Sexual Harassment Act are adhered to and the interest of women
remains secured at all times. Incidentally, the guidelines issued by the Supreme Court in 1997 in the case of
Vishaka v. State of Rajasthan did not prescribe such a three year period and hence these questions did not arise
previously.
The Bombay High Court has recently 37 ruled that it would not interfere with an order of punishment passed by the
ICC in relation to a sexual harassment complaint, unless the order is shockingly disproportionate. 38 This judgment
reaffirms the importance and powers of the ICC that is required to be formed under the Sexual Harassment Act.
Given the sensitivities surrounding sexual harassment allegations, it is important that the ICC is trained to deal
with such cases in a fair, proper and dispassionate manner and based on the principles of natural justice. It is also
necessary for the ICC to ensure that it completes the investigation and issues its order within the time frame set
under the law.
This judgment also clarifies the already enshrined principles of judicial restraint by the courts. The interference
of the courts should be limited to ensuring that there are no procedural irregularities or violations of principles of
natural justice. Once the ICC has adequately and appropriately addressed a complaint of sexual harassment, it is not
open to the courts to look into the merits of the matter.
This time though, employers are not alone - the government, on its part, faces similar issues and questions as
mentioned above. Members of the Local Complaints Committee set by up the District Officers in each district, are
also subjected to the same timeline of 3 years.
37 Vidya Akhave v. Union of India and Ors. (Writ Petition 796 of 2015)
38 For more information, please refer to our legal alert: http://www.nishithdesai.com/information/news-storage/news-details/article/workplace-
sexual-harassment-complaint.html

Annexure III
Bombay Chartered Accountants’ Society - India’s Law
on Prevention of Sexual Harassment at the Workplace

Annexure III

Annexure IV
Sexual Harassment at Workplace: Indian Government
Introduces Platform for Female Employees to File Complaints
§ The Ministry of Women and Child Development has launched “SHe-Box”, an online platform for reporting
complaints of sexual harassment arising at the workplace.
§ The SHe-Box facility can be used by both government and private sector employees.
§ Complaints received on SHe-Box shall be directed by the government to the employer’s ICC or LCC.
§ Progress of the investigation can be monitored by both the complainant and the Ministry of Women and
Child Development.
I. What’s She-Box?
The Indian Ministry of Women and Child Development (“WCD”) had launched an online complaint platform
named “SHe-Box”, which stands for “Sexual Harassment Electronic Box”. 39 SHe-Box has been introduced to allow
female employees or visitors a platform to raise complaints of sexual harassment at the workplace. 40 This facility
has also been extended to private sector employees. 41
‘SHe-box’, which can be accessed at www.shebox.nic.in, seeks to ensure effective implementation of India’s
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Anti-Harassment
Law”). It aims at providing speedy redressal of sexual harassment complaints. In the event that a formal complaint
is lodged with SHe-Box, based on an assessment of the complaint, the WCD will direct such complaint to the
employer’s Internal Complaints Committee (“ICC”) or the Local Complaints Committee set up by the government
at each district (“LCC”), as the case may be. The WCD also proposes to actively monitor the progress of inquiry
conducted by the ICC / LCC and keep the complainant updated. 42 SHe-Box also proposes to work as a repository
providing information related to dealing with workplace sexual harassment complaints. The users are free to
access the resources available on SHe-Box for creating awareness. 43 The WCD promises to ensure that the identity
of the aggrieved women / complainant is kept confidential. 44
39 http://shebox.nic.in/
40 2http://pib.nic.in/newsite/PrintRelease.aspx?relid=168892
41 3http://pib.nic.in/newsite/PrintRelease.aspx?relid=173299
42 http://www.hindustantimes.com/india-news/she-box-to-the-rescue-of-govt-s-women-employees-facing-sexual-harassment-
at-work/story-nb3z7IhcIl9yiag5MTLOoI.html
43 5http://www.shebox.nic.in/user/termsConditions
44 Ibid

Annexure IV
II. Grievance Redressal Under The Anti-Harassment Law

Please refer to our research paper titled ‘India’s law on Prevention of Sexual Harassment at Workplace’ for
information on India’s Anti-Harassment Law. A brief snapshot is as follows:
§ The Anti-Harassment Law was enacted in December 2013, almost 16 years after the guidelines issued by the
Supreme Court in the case of Vishakha. 45 Please refer to our legal alert on this topic here.
§ As per the Anti-Harassment Law, every employer employing at least 10 employees is required to set up an ICC at
each office or branch to investigate and redress sexual harassment grievances.
§ The government is also required to set up a LCC in every district to deal with complaints of sexual harassment
arising 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 law imposes a penalty of upto Rs. 50,000 (approx. USD 775) on employers who do not implement the provi-
sions of the Anti-Harassment Law including failure to constitute an ICC.
III. Analysis
The introduction of SHe-Box is a positive step of the Indian government in its continuing efforts to provide a safe
and fair working environment for women. With this initiative, female employees now have another channel to
raise workplace sexual harassment complaints.
Inspite of the enactment of the Anti-Harassment Law in 2013, the WCD has been receiving sexual harassment
complaints. 46 This indicates that either there are employers that may not have a fully functional ICC or necessary
awareness has not been created at the workplace. It could even be possible that female employees do not have
enough confidence in their employer’s internal complaint mechanism or that the investigation has been delayed.
The government will however need to quickly implement the requisite infrastructure and resources to manage
this initiative to achieve the desired objectives. While SHe-Box has currently been designed to cater to the interests
of female employees, enabling them to raise complaints of sexual harassment on a quick time basis without fear of
retaliation, the government should also use this platform by providing necessary tools to help employers comply
with the Anti-Harassment Law.
By way of examples, SHe-Box could serve as a point of reference for employers or their ICC should they have any
questions relating to the process to be followed upon receiving a complaint or how the report should be worded.
It could also serve as a repository of experienced personnel who could serve as the external member on the
employer’s ICC at different locations.
45 Vishaka and others v. State of Rajasthan, 1997 (7) SCC 323

46 http://www.hindustantimes.com/india-news/she-box-to-the-rescue-of-govt-s-women-employees-facing-sexual-harassment-at-work/story-
nb3z7IhcIl9yiag5MTLOoI.html

Annexure IV
According to the National Crime Records Bureau, between 2014 and 2015 (that is, after implementation of the
Anti-Harassment Law by the Indian government), reporting of sexual harassment complaints has increased
significantly. 47 In terms of statistics, 65.2% of women have reported that their employers do not follow the
procedure laid out under the Anti-Sexual Harassment Act and 46.7% of the participant companies have admitted
that their ICCs are not aware of the legal provisions pertaining to sexual harassment 48 The recent worldwide social
media campaign #Metoo which was started in response to the Harvey Weinstein scandal, depicted the magnitude
of sexual harassment issues worldwide. The movement gave many Indian women the space and encouragement to
come out with their own experiences of sexual harassment. 49
Some women also penned down horrifying instances from their childhood through social media, while some shed
light on their daily struggles including incidents of sexual harassment at their workplaces.
In the last couple of years, sexual harassment issues have been widely covered in the Indian media. Given the
litigational and reputational risks associated with non-compliance of the Sexual Harassment Law, it is high time
that employers take affirmative steps in implementing zero-tolerance policies towards sexual harassment at their
workplaces and ensure that the complaint is investigated swiftly, comprehensively and confidentially.
47 http://www.business-standard.com/article/current-affairs/70-working-women-do-not-report-workplace-sexual-harassment-in-
india-117030400227_1.html
48 Ibid.
49 1https://theprint.in/2017/10/16/me-too-indian-victims-sexual-assault/

Annexure V 50
India’s Law On Workplace Sexual Harassment: Recent

Judicial Interpretations
The law on prevention of sexual harassment of women at workplace is nearing its 5th anniversary. And during
the period, courts in India have already started analyzing cases, interpreting the law and rendering their
decisions.
In this legal alert, we have attempted to summarise some important judgements which we hope will provide
additional guidance to inhouse counsels and HR practitioners who regularly deal with such matters.
Background
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 of India (“POSH
Act”) was enacted in December 2013. For background on the law, please refer to our research publication on the law
and the employer’s obligations: click here
A direct outcome of this new law was increased awareness amongst the employee community. The media played
a critical role in spreading that awareness and highlighting lack of compliances by employers. All of this led to
creating a robust platform for the female workers to report harassment incidents. After enacting the law, the
government on its part made it easier by launching SHe-Box initiative. Please refer to our legal alert on this subject:
click here
A.What Constitutes ‘Sexual Harassment’?

1. The Delhi High Court held that there must be physical contact having an undertone of sexual nature to
constitute ‘sexual harassment’ under the POSH Act. It opined that an altercation in the context of unwelcoming
environment prevailing at the workplace is not a case of sexual harassment. 51
2. In another instance, the Kerala High Court held that the act or behavior must be connected with sexual
harassment including allegations of promise, threat or an offensive or hostile work environment towards
female employees. A solitary allegation of intemperate language against a female employee in a report does not
constitute an offence under the POSH Act. 52
50 https://www.peoplematters.in/article/diversity/prevention-of-sexual-harassment-at-workplace-lessons-from-case-laws-19210
51 Shanta Kumar v. Council of Scientific and Industrial Research (CDIR) & Ors, Delhi High Court ((2018) 156 FLR 719)
52 K.P. Anil Rajagopal v. State of Kerela, Kerela High Court ((2018) 1 KLJ 106)

Annexure V
B. What is a Workplace?
1. The Delhi High Court upheld the decision of the employer to terminate the employment of the accused in line
with the recommendations of the Internal Committee (“IC”), where the accused was alleged to have sexually
harassed a female colleague during an outstation visit for work. 53
2. The Bombay High Court pointed out that the definition of ‘workplace’ is inclusive and deliberately kept wide by
the Parliament to ensure that any area where women may be subjected to sexual harassment is not left unat-
tended or unprovoked for. 54
C. Filing of a Complaint with the IC

1. The Rajasthan High Court held that the aggrieved woman can file a complaint with the IC without having to
submit the complaint in person. The complaint could be sent to the IC through another person or by any other
media, the main point being that it should be received by the IC. 55
2. The Delhi High Court held that merely because the petitioner has an alternate remedy to file the given case
before another forum, it would not act as a constitutional bar for the Court to adjudicate upon the matter. It also
held that the findings of IC should not be ignored on vague and general grounds. 56
D.How can IC be Constituted?

1. The Delhi High Court has opined that the appointment of external member of the IC should be in strict compli-
ance with the POSH Act and the rules thereunder. Accordingly, enquiry proceedings conducted by an IC that is
not properly constituted as per the law, may be treated as invalid. 57
2. In another matter before the Rajasthan High Court, it was held that the external member need not necessarily
have legal background or knowledge in the aspects of sexual harassment against women. Having experience in
the social work is sufficient for being a valid member of
the IC. 58
3. The Bombay High Court held that an IC which does not have at least two members (who are either dedicated to
the cause of women or have experience in social work or have legal knowledge), would be illegal and contrary
to the provisions of the POSH Act. In that judgement, the court also re-emphasized that it is employer’s respon-
sibility to constitute proper IC. 59
53 Gaurav Jain v. Hindustan Latex Family Planning Promotion Trust and Ors. (2015 SCC OnLine Del 11026)
54 Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University (2014 SCC OnLine Bom 814)
55 Shital Prasad Sharma v. State of Rajasthan and Ors. (2018 SCC OnLine Raj 1676)
56 Sarita Verma v. New Delhi Municipal Corporation & Ors, (2016 LLR 785 (2))
57 Ruchika Singh Chhabra v. Air France India and Anr. (2018 SCC Online Del 9340)
59 Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University, Bombay High Court (2014 SCC OnLine Bom 814)

Annexure V
E. Powers of the IC
1. The Delhi High Court held that the IC could extend the time limit for filing a complaint by another 3 months,
i.e. up to six months from the date the incident has taken place, by recording reasons in writing, if it is satisfied
that circumstances prevented the complainant filing of complaint earlier. 60
2. In another case, it was clarified that the petitioner has the right to approach IC for immediate protection that
may be required and that the IC is empowered to grant interim relief, if it deems fit. 61
3. The Delhi High Court has clarified that the IC is empowered to enforce the attendance of any person as per the
provisions of the POSH Act. 62
4. The Bombay High Court held that where the inquiry has been conducted by the IC after giving adequate oppor-
tunity to all the parties and it has reached a conclusion, then merely because two views are possible, the court
is not expected to re-appreciate the evidence and come to a different conclusion than the one which has been
arrived at by the ICC. 63
F. Conducting the Inquiry Proceedings

1. It was ruled that the inquiry proceedings should be fair and impartial. If there is any allegation of bias against
any member of the IC, the inquiry proceedings should be stayed or put on hold until the disciplinary authority
takes a decision. If the disciplinary authority believes that the allegation of bias is true, then it would invalidate
the proceedings, a new committee would be formed and proceedings would need to start afresh. 64
2. The Madras High Court set territorial jurisdiction for conducting the inquiry proceedings - it ruled that the
inquiry proceedings should be conducted within 500 kms of the place of the incident. In that case, the Hon’ble
Judge opined that requiring the victim to travel more than 500 kms to attend the inquiry proceedings would
itself constitute harassment! 65
3. It was held that the inquiry as per the POSH Act is not a preliminary inquiry but instead a full-fledged enquiry,
which needs to be done in the same manner as is done to prove misconduct in disciplinary proceedings. The
court mandated the IC to follow principles of natural justice and give fair opportunity to the respondent to
defend himself. 66
4. The Delhi High Court pointed out that strict rules of evidence are not required to be followed in inquiry
proceedings and that the IC can adopt its own procedure in conformity with the principles of natural justice
and especially in a case of sexual harassment. 67
60 Tejinder Kaur v. UOI (2017 SCC Online DeL 12221)

61 Confidential v. Indian Institute of Corporate Affairs (2018 SCC Online Del 6801)
62 Ashok Kumar Singh v. University of Delhi and Ors (2017 LLR 1014)
63 Vidya Akhave v. Union of India, Department of Women & Children & Ors (2017 LLR 357)
64 Tejinder Kaur v. UOI, Delhi High Court, (2017 SCC Online DeL 12221)
65 K.Hema Latha v. State of Tamil Nadu, Madras High Court, (MANU/TN/1414/2018)
66 Sibu v. Air India Limited, ((2016) 2 KLJ 434)
67 Gaurav Jain v. Hindustan Latex Family Planning Promotion Trust and Ors. (2015 SCC OnLine Del 11026)

Annexure V
5. In another matter before Rajasthan High Court, it was observed that the POSH Act and the rules enable a three-
member team to conduct the inquiry so long as the Presiding Officer is present. Therefore, the inquiry report
does not stand vitiated unless it is shown that there were less than 3 members who conducted the inquiry. 68
G. Employers’ Rights and Territorial Jurisdiction of the Courts

1. The Patna High Court held that the disciplinary authority can dismiss an employee from the services once the
sexual harassment charges are proven. 69
2. The Gauhati High Court held that the court which shall have the territorial jurisdiction to hear the matter of
sexual harassment shall be the place where the act has occurred. Accordingly, if the harassment occurred in
Kolkata while the parties were travelling for office work, the court in Kolkata shall have the jurisdiction even if
the workplace of the offender is in Guwahati. 70
Analysis
Since the POSH Act is still at a nascent stage, these cases help us clarify the position of law and better analyse
the matters relating to sexual harassment at workplace. While several of these cases are specific to their unique
backgrounds, they serve as an aid to the IC who are required to investigate complaints.
It is pertinent to note that the courts are recognizing and upholding the powers to the IC as provided by law.
Accordingly, employers and their ICs need to ensure that the proceedings are conducted in a fair manner and in
compliance with the law and the principles of natural justice.
Sexual harassment allegations in the workplace not only run the risk of loss of employer’s reputation but also
lead to legal troubles. Needless to mention, sexual harassment at workplace continues to remain one of the most
sensitive issues that needs to be dealt with immense care and sensitively. As opined by the Bombay High Court,
employers need to genuinely be concerned with the safety of women at workplace rather than staging a farce of
compliance under the POSH Act. 71
69 Mohan Kumar Singh v. Chief Manager (HRD) Central Bank of India, (2017 SCC OnLine Pat 2483)
70 Biplab Kumar Das v. IDBI Bank Ltd and Others, (2017 LLR 1148)
71 Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University (2014 SCC OnLine Bom 814)

Annexure VI
India’s Law On Prevention of Sexual Harassment at
Workplace: Analysis of Recent Case Laws - Part 2
India continues to see a rise in sexual harassment complaints and related litigation, largely due to its Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 of India (“POSH Act”)
followed by the #MeToo revolution. We are writing this legal alert analysing the important case laws, following our
previous legal alert.
I. Wider Interpretation of What Constitutes Sexual

Harassment
In a case before the High Court of Bombay 72, the court disagreed with the decision of the Internal Complaints
Committee (“IC”) who had concluded that the complaint filed by the woman amounts to misconduct and
mis-behaviour, rather than sexual harassment. The complainant claimed that her subordinate used abusive and
unprofessional language against her. The court observed that the IC had failed to take into consideration the
additional circumstances provided under Section 3(2) of the POSH Act which also amounted to sexual harassment
including creation of an intimidating or hostile environment for women and humiliating treatment likely to affect
health and safety of a woman.
II. Employer’s Failure to Constitute The IC

The Madhya Pradesh High Court imposed a fine of INR 50,000 (approx. US$ 700) on the petitioner, a renowned
hospital in Indore, for not having constituted an IC. As per the POSH Act, every employer having at least 10
employees is required to constitute an IC at each of its workplaces to investigate complaints pertaining to
workplace sexual harassment of women. 73 The court also directed the hospital to pay a compensation of INR 2.5
million (approx. US$ 35,000) to the complainant for the pain & suffering, loss of reputation, emotional distress and
loss of salary, which had resulted in deprivation of the complainant’s right to live with dignity.harassment.
III. Need of an External Member to Form The IC

The Punjab and Haryana High Court ordered the employer to re-constitute the IC since there was no external
member. 74 As per the POSH Act, the IC should have an external member who is a person associated with a
non-governmental organisation or association committed to the cause of women or a person who is familiar with
issues relating to sexual
72 Sapana Korde Nee Ketaki A. Ghodinde v. the State of Maharashtra and Ors. 2019(1) Bom CR (Cri)415
73 Global Health Private Limited & Mrs. Arvinder Bagga v. Local Complaints Committee, District Indore and Others
74 Neelam Bhardwaj v. State of Punjab & Ors., 2018 LLR 1286

Annexure VI
IV. Extent of Extended ‘Workplace’ Under Posh Act

The High Court of Calcutta held that the Privy Lounge, Bar-cum-Restaurant at a mall, where the incident of sexual
harassment was alleged to have taken place between two fellow students of IIM, Calcutta, cannot be termed as a
‘workplace’ under the POSH Act. Therefore, the court directed the Counselling Officer of IIM, Calcutta to mediate
and settle the matter. 75
V. Conflict of Interest Amongst IC Members

In a case before the High Court of Delhi, the court ruled that a mere apprehension of bias would not be sufficient
to exclude a member from the IC. Citing certain previous decisions of the Supreme Court in this respect, the court
pointed out that it would be necessary to establish a real likelihood of bias rather than a mere apprehension. The
court also said that “if right minded persons would think that there is real likelihood of bias on the part of an inquiring
officer, he must not conduct the inquiry.” 76 In this case, since the Presiding Officer of the IC was a witness to the
incident, she recused herself from handling the complaint. With respect to the rest of the IC members, there was
not even a remote suspicion that any of them had any personal interest which would conflict with their obligations
to conduct a fair inquiry under the POSH Act. Therefore, the court held that there was no need to re-constitute the IC.
Please also see our recent article titled “POSH Committee - Dealing with bias and conflict of interest” which
may be viewed here.
VI. Improper Investigation Procedure Can Vitiate The

Inquiry
The Kerala High Court set aside the order of the IC to terminate the accused since it had not followed the procedure
set out under law while conducting the inquiry. 77 In this case, the accused was not provided with a copy of the
complaint nor the findings of the IC after completion of the inquiry.
In a similar case before the High Court of Calcutta, the court held that since the respondent was not given an
opportunity to cross-examine the complainant, proper investigation procedure has not been followed. 78 Although
the complaint arose before the POSH Act was enacted, the court observed that neither the landmark Supreme
Court decision in Vishaka v. State of Rajasthan (1997) nor the provisions of Section 11 of the POSH Act conceives a
situation of denying the accused an opportunity of hearing what the victim has to say against the respondent or
the opportunity to cross-examine the complainant. In this case, the investigating authority had not recorded any
reason as to why it would not be feasible to allow the victim to record her statement in the presence of the alleged
offender and also as to why the respondent has been denied the opportunity to cross-examine the complainant.
The court observed that ‘the right of cross-examination has invariably been recognised as a basic right of an accused in
proceedings, whether it be criminal or departmental’. If an inquiry is conducted without extending the opportunity
of cross-examination to a delinquent and findings are adverse to the interests of such party, the delinquent can
legitimately raise a claim of having been denied the ‘reasonable opportunity’ to defend himself. If the allegation is
found to be correct, the proceedings would stand vitiated.
75 Shubham Bhuwangiri Goswami v. the Union of India and Ors. MANU/WB/1285/2019

76 Somaya Gupta v. Jawarharlal Nehru University and Ors. 2018 (159) FLR 390
77 Dr. T.V. Ramakrishnan v. Kannur University 2018 LLR 990
78 Union of India and Ors. v. Shibaram Sarkar MANU/WB/1016/2019

Annexure VI
VII. Need to Comply With The Employer’s Service Rules

In a case before the High Court of Calcutta, the court set aside the order of the IC on the ground of procedural
impropriety and violation of principles of natural justice. 79 In this case, the petitioner had alleged that the
respondent humiliated and mentally harassed her. Basis the investigations, the IC made a decision in favour of the
petitioner. However, the court observed that where there is a procedure prescribed for inquiry under the service
rules (HR policies) of the employer, it should be complied with by the employer in addition to the procedure
prescribed under the POSH Act.
VIII. Limitation Period for Complaint Under Posh Act

In a case before the High Court of Delhi, the order of the Local Complaints Committee (LC) dismissing the
complaint was challenged. The LC had dismissed the complaint on the ground that the complaint was
filed beyond the limitation period of three months prescribed under Section 9 of the POSH Act. However, the
complainant submitted before the court that there were certain previous correspondences which were filed with
the employer within the limitation period and that the complaint was brought to the notice of the employer within
the limitation period. Since such documents/information were not furnished to the LC while deciding upon the
matter being barred by limitation period, the court relegated the parties to the LC by giving the complainant an
opportunity to file such communications before the LC, enabling the LC to make an informed fresh decision on the
issue of limitation. 80
IX. Criminal Proceedings Besides Remedy Under The

Posh Act
The High Court of Jammu & Kashmir held that the POSH Act does not bar the complainant from seeking remedy
under the Ranbir Penal Code (equivalent to the Indian Penal Code (IPC)) just because the matter has already been
taken cognizance of by the IC constituted under the provisions of the POSH Act. 81
However, the High Court of Karnataka has clarified that initiating criminal prosecution under Section 354 of the
IPC in respect of a matter which has already been investigated by the IC on the same facts and evidences and was
found to be no claim of sexual harassment by the IC, would be unjust on the part of the court. In this case, except
reiterating the very same allegations which were made by the complainant before the IC, no additional material
was placed on record to substantiate the said criminal charges. 82
79 Debjani Sengupta v. Institute of Cost Accountants of India 2019 SC OnLine Cal 734
80 X. v. District Magistrate MANU/DE/0361/2019
81 D.B Singh v. State of Jammu & Kashmir and Ors. MANU/JK/76/2019
82 Usha Padmini and Ors. v. State of Karnataka and Ors. MANU/KA/0584/2019

Annexure VI
X. Analysis
The POSH Act being a relatively new labour law in India, these judgements analysing various intricate aspects
under the POSH Act helps provide better clarity not just for the employer and the IC members, but also for the
public at large.
In light of the #Me Too movement, a number of cases including those which occurred before the enactment of
the POSH Act are now coming into limelight. With the rising number of reported cases of workplace sexual
harassment of women, it becomes imperative for employers and their respective HR & in-house legal teams to take
pro-active steps to prevent and effectively redress complaints of workplace sexual harassment.
It is also important for employers to regularly train their IC members on the nuances of the POSH Act and
investigation formalities. In order to keep litigation at bay, a comprehensive understanding of the interpretation
being adopted by courts in India and the ability to look at things from the lens of the judiciary, is necessary.
While employers have in general been following the process of educating/training their IC members on the POSH
Act, as a next step, the IC members should be kept abreast of the latest judicial interpretations, so as to avoid any
potential mistakes which could end up creating litigation and reputational risks for the employer.

Annexure VII
India’s Law on Prevention of Sexual Harassment at

India’s law on prevention of workplace sexual harassment continues to gain traction in spite of the Covid-19
lockdown and employees working remotely. Incidentally, the definition of ‘workplace’ under the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 of India (“PoSH Act”)
includes “a dwelling place or a house”. While that was primarily meant to cover domestic helpers, it could extend to
employees working from home.
While the shift to a virtual workspace has reportedly lead to a decline in the total number of sexual harassment
complaints in India 83, sexual harassment continues to occur in more subtle ways such as inappropriate messages,
calls/texts at odd hours, sexist remarks, taking screenshots without one’s knowledge during video calls etc. 84
Considering the lockdown since March 2020, cases relating to PoSH Act have been heard on video conferencing and
the judgments have been pronounced virtually, keeping in mind the urgency and gravity of the situation.
Following our previous legal alerts in 2019 and in 2020, we are delighted to share Part 3 of our analysis of some of
the recent and pertinent case laws on PoSH Act related aspects.
I. What is “Sexual Harassment” ?

1. The Kerala High Court upheld the principles laid down in its previous judgment 85 and opined that sexual
harassment at the workplace should start from an express or implied sexual advance or unwelcome behaviour
which has a ‘sexual’ tone behind it. 86 In the absence of a ‘sexual’ tone to the behaviour, provisions of the PoSH
Act will not apply. The court further clarified that the definition of ‘sexual harassment’ under the PoSH Act is
an inclusive definition and accordingly any other form of ‘sexual’ treatment or ‘sexual’ behaviour can fall under
the purview of the PoSH Act.
2. The Madhya Pradesh High Court observed that the conduct of the supervisor amounted to ‘sexual harassment’
as such conduct created an intimidating and hostile work environment for the complainant which included
acts such as commenting on the complainant’s dress and outfits, suggesting that he would make work difficult
for her if she was not good to him, speaking in a manner which was offensive to her dignity and chastity etc. 87
In this case, since the female employee (complainant) was terminated from employment for no fault of hers, the
Court held that the aggrieved woman was entitled to compensation of Rs. 2,500,000 (approx. US$ 34,000) for the
pain and suffering, loss of reputation, emotional distress and loss of 18 months’ salary, besides provident fund
and other monetary dues. The court also directed the employer to issue the female employee a character and
experience certificate for the period she was in employment with the employer without attaching any stigma
83 https://www.livemint.com/companies/news/sexual-harassment-cases-at-offices-decline-in-fy21-11630864037305.html
84 https://www.livemint.com/news/business-of-life/even-in-the-virtual-office-sexual-harassment-continues-11594561717967.html
85 Anil Rajagopal v. State of Kerala and others [I.L.R. 2018 (1) Kerala 719 ]
86 Prasad Pannian v. The Central University of Kerala and Ors. 2021LLR384 (Kerala HC)
87 Global Health Private Limited v. Local Complaints Committee, District Indore and Ors.2020 LLR 40 (MP HC)

Annexure VII
whatsoever. The court imposed a penalty of INR 50,000 (approx. US$ 680) upon the employer under Section 26
of the PoSH Act for not constituting an Internal Complaints Committee (ICC) at the relevant time.
II. Sexual Harassment does not Necessarily have to be

Man V. Woman
§ The High Court of Calcutta clarified that sexual harassment complaints against another individual of the same
gender is maintainable under the PoSH Act. 88 In this respect, the court pointed out that there is nothing under
the PoSH Act which precludes a same gender complaint and that a person of the same gender can also hurt the
modesty or dignity of a woman. The court pointed out that ‘although it might seem a bit odd at the first blush that
people of the same gender complain of sexual harassment against each other, it is not improbable, particularly in the
context of the dynamic mode which the Indian society is adopting currently, even debating the issue as to whether
same-gender marriages may be legalized’.
III. Constitution & Functioning of The ICC

1. The Supreme Court of India (SC) held that there was a fundamental defect in the constitution of the ICC as the
external member on the ICC was found not to be an independent third party in accordance with the provisions
of Section 4(2)(c) of the PoSH Act. In this case, it was noted that the external member on the ICC was appearing
on behalf of the employer (bank) as a panel lawyer and was therefore not independent. 89 In this context, the SC
observed that the purpose of having an external member is to ensure the presence of an independent person
who can aid, advise and assist the ICC.
2. The Bombay High Court set aside the report of the ICC as it was observed that the external member on the ICC
was not a member of any non-governmental organisation or association committed to the cause of women or
a person familiar with the issues relating to sexual harassment. 90 In this case, the court also pointed out the
importance of organising regular orientation or training programmes for the members of the ICC to deal with
complaints and steer through the process of settlement or conciliation with sensitivity.
3. The High Court of Delhi laid down the following requirements with respect to constitution and functioning of
the ICC:
a. Members of the ICC must be impartial i.e. they should not have any personal knowledge or interest in the
case or be connected to the case in any manner
b. Members of the ICC should not have conflict with any of the parties involved
c. Objectivity needs to be maintained in the conduct of the proceedings
d. There should be no cause for bias for or against any of the parties
e. Members of the ICC ought to possess blemish-less credentials
f. Independent members are needed on the ICC to aid, advise and assist the ICC in a fair and impartial manner
88 Malabika Bhattacharjee v. Internal Complaints Committee, Vivekananda College and Ors. 2021(1) SCT 431 (Calcutta)
89 Punjab and Sind Bank and Ors. v. Durgesh Kuwar AIR2020SC3040
90 Ruchika Kedia v. Internal Complaints, Goa Institute of Management, Through Its President Prof. Annamika Sinha And Ors. 2020 SCC Online
BOM 139

Annexure VII
g. An independent person should actually be someone external and cannot, for example, be the panel lawyer
of a bank in a situation where the complainant and the respondent are employees of the bank
h. There should be no undue pressure and influence on the ICC from senior levels
i. In cases where persons who have been at the helm of affairs are themselves the respondents in a complaint,
the ICC cannot be one of their choice or of persons who have worked under them
j. The ICC should follow a clear and precise procedure to deal with sexual harassment complaints
k. The principles of natural justice should be followed scrupulously
l. The proceedings should lend confidence and assurance to the complainant and make her comfortable
m. The principles and guidelines laid down by the SC in the Vishaka judgment ought to be followed rigorously
and not in a ritualistic manner irrespective of the enactment of the PoSH Act
n. n. The inquiry proceedings should inspire the confidence of the Court. 91
In this case, it was found that the ICC was improperly constituted as it comprised of three members who were part
of the same department as the respondent was previously employed in and were in fact subordinate to him at that
point in time. Since, it is the settled position under law that the ICC should be a body which is objective and neutral
and not biased in any manner, the employer was ordered to re-constitute the ICC.
IV. Powers of the ICC

§ § The Delhi High Court stressed upon the fact that the ICC’s role was limited to holding an enquiry and submit-
ting a report as per the provisions of the PoSH Act. 92If a case of sexual harassment is made out, then the recom-
mendations of the ICC can only be for taking appropriate action for misconduct in accordance with the provi-
sions of the service rules as contained in Section 13 of the PoSH Act. If a case of sexual harassment is not made
out by the ICC, the ICC can only conclude that no action is required to be taken. On the other hand, in this
case, it was noted that the ICC had made observations in its report on the conduct of the parties (in spite of the
conduct falling outside the scope of ‘sexual harassment’) and opined that the parties had indulged in an in-
appropriate / unbecoming conduct and indiscipline, and recommended that the competent authority take suit-
able action against them. The court pointed out that the ICC cannot make comments on the personal conduct
of the parties and that the ICC’s jurisdiction would be restricted to the allegations of sexual harassment and
whether a complaint is made out or not to that effect.
V. Disciplinary Action to be Based on The Inquiry and in

Accordance with Existing Service Rules
1. The SC held that the termination of an Associate Professor at a University who was alleged to have indulged in
acts of sexual harassment, is illegal as it was issued without subjecting him to an inquiry as per the applicable
service rules and the provisions of the PoSH Act. 93Accordingly, the SC ordered reinstatement of the employee.
91 Rashi v. Union of India And Another (MANU/DE/2178/2020)

92 Bibha Pandey v. Punjab National Bank and Ors. 2021 LLR 359
93 Vijaykumaran C.P.V. v. Central University of Kerala and Ors. (2020)12 SCC 426

Annexure VII
2. The High Court of Gauhati pointed out that in order to initiate a disciplinary proceeding under the servicerules
of the company, it must be preceded by a conclusion arrived at by the ICC that the sexual harassmentallegations
made against the person concerned have been proved. 94Accordingly, the court ordered theemployer to produce
records establishing the fact that the allegations were proved before the ICC before the order of suspension and
show-cause notice was issued to the employee.
VI. Role of ICC vis - À - vis Disciplinary Committee inSexual

Harassment
§ The High Court of Orissa at Cuttack pointed out that if disciplinary action has been taken against an employee
for indulging in an act of sexual harassment on the basis of an ICC report, the employer cannot re-initiate a
fresh inquiry by its disciplinary committee as that would amount to a second inquiry. 95In other words, once
the inquiry report has been prepared by the ICC, the findings and the report of the ICC shall not be treated as
a mere preliminary investigation or inquiry leading to a disciplinary action but shall instead be treated as the
final finding/report in an inquiry into the misconduct of the delinquent.
VII.Can Employer Deviate from Recommendations of

The ICC ?
§ The High Court of Calcutta opined that the expression “act upon the recommendation” contained in Section 13(4)
of the PoSH Act does not make it imperative for the disciplinary authority to act on the recommendations of the
ICC by accepting it. 96The expression “act upon the recommendation” would mean either accept or reject the
recommendation, for reasons to be recorded in writing. If the recommendations were binding, it would cease
to be a recommendation and partake the character of a command which obviously is not the legislative intent.
Accordingly, the recommendation of the ICC has to be seen and understood as a recommendation, nothing
more nothing less. It is entirely upon the disciplinary authority to decide its next course of action upon giving
the recommendation due consideration.
VIII. Conclusion
Various courts continue to discuss and interpret the provisions of the PoSH Act. Such decisions need to be taken-
note of and carefully analysed by the employer and the ICC, in view of the sensitivities involved in relation to
thetopic of sexual harassment at the workplace.
94 Ananta Prasad v. Gauhati High Court and Ors. 2020 LLR 980
95 Keshaba Ch. Panda vs. Sambalpur University and Ors 2020 (I) OLR 909
96 Institute of Hotel Management, Catering Technology and Applied Nutrition and Ors. vs. Suddhasil Dey and Ors. 2020 (4) SLR 437

Annexure VIII

Workplace: Analysis of Case Laws - Part 4
In a first of its kind judgment, the Bombay High Court has issued guidelines to ensure confidentiality of hearings
pertaining to matters of workplace sexual harassment of women. The guidelines issued by the court, in the matter
of P v. A & Ors. 97 (“PoSH Confidentiality Guidelines”), relate to inter alia the manner in which such cases should
be heard and handled; how decisions should be recorded, pronounced and communicated and the precautionary
steps to be followed while reporting such matters including by the media.
The PoSH Confidentiality Guidelines shall serve as a working protocol for the courts. The objective is to protect the
identities of the parties from even accidental disclosure. The PoSH Confidentiality Guidelines as pointed out by the
Bombay High Court are the bare minimum to be followed by the courts and are subject to necessary revisions or
modifications.
I. Background
One of the key objectives of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 (“PoSH Act”) has been to provide for an effective grievance redressal mechanism for women
who have been unfortunately subjected to workplace sexual harassment. However, the fact remains that owing to
the fear of having to compromise their privacy resulting in shame, anxiety, humiliation, and fear, a large section of
women still continue to take a back seat when it comes to reporting incidents of workplace sexual harassment.
In order to protect the confidentiality of the parties concerned, section 16 of the PoSH Act restricts the contents
of the complaint, the identity and addresses of the parties (including the aggrieved woman, respondent and
witnesses), any information relating to conciliation and inquiry proceedings, recommendations of the Internal
Complaints Committee (ICC) or the Local Complaints Committee, and the action taken by the employer or the
District Officer under the provisions of the PoSH Act from being published, communicated or otherwise being
made known to the public, press and media in any manner. However, the law permits dissemination of informa-
tion regarding the justice secured to the victim, subject to the condition that the name, address, identity or any
other particulars leading to the identification of the aggrieved woman and witnesses is not disclosed. In the event
that any person is found to violate the afore-mentioned confidentiality obligations, the PoSH Act provides for a
monetary penalty of INR 5,000 (approx. USD 70) 98 .
In spite of the afore-said confidentiality restriction, as observed by the Bombay High Court, there has been no
established guidelines so far in such matters, often leading to a scenario where the confidentiality of the parties
stood compromised. Therefore, it had become imperative for the court to lay down certain guidelines in this
respect.
97 Suit no. 142 of 2021, Bombay HC, decided on September 24, 2021
98 Rule 12 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules 2013

Annexure VIII
II. Guidelines for Handling Cases

The PoSH Confidentiality Guidelines include the following directions:
1. To anonymize identities of the parties:
a. While identity documents may be requisitioned for by the Registry to establish the identity of the deponent,
no such document or personally identifiable information (“PII”) shall be retained on file.
b. The names of the parties will not be mentioned in the order sheets. Instead, they will be referred to as Plain-
tiff, Defendant No.1, etc.
c. There will be no mention of any PII in the order whether it be the names, email ids, mobile or telephone
numbers, addresses etc. of the parties. Additionally, no witnesses will be mentioned, nor will their addresses
be noted.
d. All orders and judgments will be delivered in private, that is, they will not be pronounced in open court but
will be conducted only in chambers or in-camera.
e. There will be no online or hybrid facility for hearings. All hearings will require physical attendance.
f. Orders/judgments on merits will not be uploaded.
2. Hearing and access to confidential information:
a. Only the advocates and the litigants shall be permitted to attend hearings. Except the Court Master/
Associate or Sheristedar and the stenographer or person providing secretarial assistance, all other staff
(including clerks, peons, etc) must leave the Court.
b. No one other than an Advocate on Record with a valid vakalatnama will be allowed to take inspection of
the order.
3. Prohibited disclosures:
a. Any form of recording of any part of the proceedings is strictly forbidden.
b. If any order is to be released into the public domain, it will require a specific order of the Court. Even if a
permission has been obtained, only the fully anonymised version of the order can be published.
c. Both sides and all parties, advocates and witnesses are forbidden from disclosing the contents of any order,
judgment or filing to the media or publishing any such material in any mode or fashion by any means,
including social media, without specific leave of the court. In fact, witnesses to the action, in addition to the
usual oath, must sign a statement of non-disclosure and confidentiality.
4. Proceedings in other courts:
a. The Labour Courts and Industrial Courts shall be bound by these guidelines and shall strictly adopt and
comply with these and any future guidelines.
Failure to comply with the conditions of anonymity laid down by the courts including by the media and/or any
attempt to record or transcribe any part of the proceedings will be treated as an offence amounting to contempt of
court and will be punished accordingly.

Annexure VIII
III. Analysis
The objective of the PoSH Act is not only to implement an effective grievance redressal mechanism, but also toz
create a system wherein women feel secure and confident to file their complaints of sexual harassment at the
workplace. While the law accomplishes that goal admirably in several different ways, confidentiality has been a
critical element which has often been overlooked especially at the time of litigation.
The PoSH Confidentiality Guidelines are therefore an important step in the right direction as it will serve as a
guidance not just for the courts but also as a reminder to the employer, ICC members and witnesses, besides the
parties who are directly involved in relation to the complaint of sexual harassment at the workplace. The ruling
of the Bombay High Court also reinforces the importance for employers to take similar measures to ensure that
sexual harassment complaints are investigated and handled in a confidential manner without exposing the
identities of the parties involved. In view of the PoSH Confidentiality Guidelines, the parties may now feel more
confident to make use of the court process.
While there is a good enough reason to protect the confidentiality of the parties given the personal and sensitive
nature of such matters, on the flip side, it needs to be seen as to how this can be balanced against the need for
transparency and accountability. Also, the PoSH Act being a relatively new law, employers and ICC members have
been keenly following the principles laid down by various courts in such matters while interpreting provisions of
the PoSH Act, which may not be possible going forward in view of the PoSH Confidentiality Guidelines.
It is hoped that the PoSH Confidentiality Guidelines are followed by courts across the country. However, it remains
to be seen whether the guidelines would be limited to workplace sexual harassment matters or be extended to cases
unrelated to the workplace as well.

Annexure IX

India’s law on prevention of workplace sexual harassment continues to see developments from courts considering
workplaces restarting through hybrid mode after some post-Covid normalcy. Previously we discussed how even at
virtual workspaces there were cases of sexual harassment.
Following our previous legal alerts we share Part 5 of our analysis of the recent and pertinent case laws on Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) related aspects.
I. Different Approaches Towards Limitation Period

a. The Delhi High Court dealt with a question whether Section 5 of the Limitation Act, 1963 will apply to
appeals under Section 18 of the PoSH Act regarding condonation of delay. 99Asserting the PoSH Act is an
ameliorative statute that is intended to redress a serious social evil as victims of sexual harassment at the
workplace suffer untold trauma (be it mental, physical and spiritual). The Court held that it cannot be
expected from a victim of sexual harassment to immediately move a court seeking appellate remedies. It
will be completely antithetical and harmful to the very scope and purpose of PoSH Act if a court or tribunal
refuses to condone a delay of as little as 36 days in an appeal under Section 18 of the PoSH Act against the
report of the inquiry committee. Thus, the Court held that Section 5 of the Limitation Act would apply in
respect of appeals which may be sought to be preferred under Section 18 of the PoSH Act.
b. On the contrary, the Madurai Bench of the Madras High Court has upheld single-judge’s decision holding
that a complaint of sexual harassment under the PoSH Act has to be filed within a period of three months
from the date on which sexual harassment is alleged to have taken place. 100 Accordingly, a complaint filed
ten months after the alleged incident was held to be barred by limitation as maximum delay can be only of
three months.
II. Application Of Posh Act In Complaints Filed By

Students
The Calcutta High Court came across an interesting issue pertaining to application of PoSH Act in complaints filed
by students. 101 It held that provisions of the PoSH Act can be availed by girl students at a school. The petitioner
was a teacher at school against whom multiple girl students through the Principal filed complaints of sexual
harassment. The court noted that the definition of ‘aggrieved woman’ as defined under Section 2(a) of the PoSH
99 DB Corp Ltd v. Shailja Naqvi, MANU/DE/2590/2022

100 Manonmanium Sundaranar University v. P. GovindarajuMANU/TN/2894/2022
101 Pawan Kumar Niroula v. Union of India, 2022 LIVELAW CAL (15)

Annexure IX
Act refers to an aggrieved woman 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. Thus, the PoSH Act applies even if
a complaint of sexual harassment has been filed by students.
III. Strict Compliance of the Procedural Requirements

a. The Madras High Court emphasised that there should be strict compliance with each and every procedural
requirement posited by the PoSH Act. 102 It stressed that as per Section 4 of the PoSH Act, every employer
shall constitute an Internal Complaints Committee (ICC) headed by a woman employed at a senior level at
workplace from amongst the employees along with two other members and apart from that, one member
from non-governmental organisations. One-half of the total members should be women. If any employer
fails to constitute an ICC as required under sub-section (1) of Section 4, it is liable to be punished as per
Section 26 of the PoSH Act.
b. The Calcutta High Court has stated that the inquiry report based on inquiry by the ICC cannot be said to
be merely a preliminary investigation report and ICC has to follow the principles of natural justice. 103 It
stated that upon a complaint of sexual harassment being made, a copy of the complaint is to be forwarded
to the employee against whom the complaint is made. The employee gets an opportunity to file his reply
to the complaint. The complainant as well as the respondent/employee gets opportunity to adduce oral
as well as documentary evidences in support of their respective contentions. The inquiry by ICC is to be
made by following the principles of natural justice. The ICC is also vested with the powers of the civil court
in respect of certain matters regarding evidence of witnesses. An aggrieved party also has a right to file
an appeal against the ICC’s report. An inquiry conducted by the ICC is a full-fledged inquiry wherein the
parties get ample opportunities to prove their contentions and a finality is also attached to such inquiry.
The PoSH Act also mandates the employer to act on the recommendations of the ICC. Hence, the inquiry
report cannot be said to be merely a preliminary investigation report. The order of punishment has to be
passed by following principles of natural justice.
c. The Madras High Court affirmed that the Presiding Officer of the ICC must be a higher level officer in
accordance with Section 4 of the PoSH Act. 104 It directed the employer to appoint a higher level woman
officer as Presiding Officer of the ICC in accordance with Section 4(2)(a) of the PoSH Act, 2013 and proceed
with the inquiry in accordance with the provisions of the PoSH Act. The Court further directed employers
to furnish the copies of the complaints and all other relevant documents to the accused on reconstitution
of the ICC by appointing a higher-level officer as Presiding Officer. The ICC constituted in accordance with
Section 4 of the PoSH Act should continue the inquiry proceedings by affording opportunity to all the
parties and by following the procedures as contemplated. It asked the accused writ petitioner to cooperate
for the early disposal of the inquiry proceedings by the ICC.
102 Amutha v. The Director of Medical and Rural Health Service MANU/TN/5600/2022
103 Pradip Mandal v. Metal Scrap Trade Corporation Ltd. and Ors. MANU/WB/0828/2022
104 S.Vinukumar v. The Government of Tamil Nadu And Ors. MANU/TN/3163/2022

Annexure IX
d. The Uttarakhand High Court has stressed on the importance of principles of natural justice to be followed
by ICC for departmental enquiries. 105 It commented that principles of natural justice are not a ritual, they
are not even a mere formality - they must be followed in letter and spirit.
e. The Bombay High Court held that disciplinary authority is required to consider the report of the ICC as fact-
finding preliminary report and then conduct disciplinary proceedings as per the relevant applicable service
rules, by drawing a charge sheet. 106
IV. Prima Facie Case of Sexual Harassment has to be

Made out for the Posh act to Apply
a. The Allahabad High Court was of the opinion that in absence of prima facie case of sexual harassment
being made out, the police authorities cannot enter into inquiry of preliminary investigation for sexual
harassment contemplated under the PoSH Act. 107 Victims in such cases can approach the appropriate
magistrate as contemplated under the Criminal Procedure Code through which it ensures strict separation
between the criminal laws and the PoSH Act. As per the court, criminal justice system cannot be utilised
for PoSH cases through mobility and cannot be merged qua the procedural jurisprudence of both.
b. The Madras High Court held that sexual harassment cannot be established in the absence of sufficient
proof. 108 It observed that the averments have to make out a tangible case to prove sexual harassment by
duly establishing the cause of action worthy enough for the court to adjudicate upon the alleged grievances
of sexual harassment.
V. Dismissal In Cases of Sexual Harassment

The Gujarat High Court held that dismissal is justified on proved charges of sexual harassment. 109 It upheld that
the presiding officer of the ICC under PoSH Act must be a woman employed at a senior level. Further, it observed
that the aggrieved woman who is subjected to sexual harassment can be of any age group.
105 Dheeraj Singh Bisht v. Chairman Cum Managing Director Writ Petition (S/S) No. 314 of 2021
106 Laxman B. Panmand v. Nuclear Power Corpn. of India Ltd., 2022 SCC OnLine Bom 893
107 Vashudha Khanna v. State Government of U.P., Criminal Misc. Writ Petition No. - 2904 of 2022
108 Thabitha David v. Commissioner of Labour, Puducherry; V. Parthiban, J., 2022 LLR 761
109 Vimalkant Bhanuprasad Shrimali v. IDMC Limited, 2022 LLR 848

Annexure IX
VI. Organisations Engaging at Least 10 Employees to

Constitute ICC
In a writ petition filed by Women in Cinema Collective (petitioner) 110the Kerala High Court, held that there did, for
a fact, exist an employer-employee relationship between the actors and their respective production units, and that
the film production units served as their “workplace” as defined under Sec. 2(o)(ii) 111 of the PoSH Act. The petitioner
brought to the notice of the Court that the Association of Malayalam Movie Artists (respondent) had failed to set
up ICC as per Sec. 4 of the PoSH Act to deal with cases of sexual harassment, and as such, wanted the court to direct
them to set it up. While the petitioner contended that the absence of the ICC was illegal, arbitrary and violative of
their fundamental rights, the respondent altogether denied being governed by the provisions of the PoSH Act since
on the belief that it was neither a “workplace” nor there existed an employer-employee relationship between the
members and the organisations. The Court held that the production unit of each film industry is an establishment
employing actor artists and other workers and therefore, such production units have to maintain an ICC, if they are
engaging more than 10 workers, as is contemplated under the PoSH Act. Any organisation, apart from the political
parties, are duty bound to maintain ICC, if they are engaging 10 or more workers for managing the office establish-
ments irrespective of whether the female workers are employed by such office establishments for wages.
VII.Express acts of Sexual Harassment not Mandatory to

Interpret the Act or Behaviour as Sexual Harassment
The Tripura High Court observed 112 that the express mentioning of instances of sexual harassment is not
mandatory in the victim’s complaint under the PoSH Act. The Court pointed out that the definition of sexual
harassment as provided under Sec. 2(n) of the PoSH Act is not exhaustive, but rather an inclusive one. Adding to
that, the Court further held that the “acts or behaviours” as mentioned in Sec. 2(n) 113 of the PoSH Act was to ensure
that acts of sexual harassment, whether done directly or by implication, are included within its ambit. It was then
observed that given the broad ambit of the definition, an express instance of sexual harassment in the complaint
was not necessary. During the inquiry by the ICC, it was revealed that the petitioner had called the complainant
to his chamber post the working hours and made remarks on her looks and tried putting his hand around her. The
Court concluded it was an unwelcoming act to be interpreted as sexual harassment within the meaning of Sec. 2(n).
110 Women in Cinema Collective vs State Of Kerala WP(C) NO. 34273 OF 2018
111 Sec. 2(o) of PoSH Act defines workplace to include—
i) 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;
ii) 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, entertainmental, industrial, health
services or financial activities including production, supply, sale, distribution or service;
iii) hospitals or nursing homes;
iv) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other
activities relating thereto;
v) any place visited by the employee arising out of or during the course of employment including transportation by the employer for under-
taking such journey;
vi) a dwelling place or a house
112 Vinay Kumar Rai v. Union of India WP(C) No.596/2019
113 Sec. 2(n) of PoSH Act defines sexual harassment as any one or more of the following unwelcome acts or behavior (whether directly or by impli-
cation) namely:— (i) physical contact and advances; or (ii) a demand or request for sexual favours; or (iii) making sexually coloured remarks; or
(iv) showing pornography; or (v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature

Annexure IX
Conclusion
Various courts continue to discuss and interpret the provisions of the PoSH Act. The evolved employment scenarios
are presenting newer challenges with respect to different aspects in a workplace. Such challenges like sexual
harassment require concerted efforts from the employers and the ICC to deal with the complaints received. In light
of the same, the decisions by different courts need to be taken note of and carefully analysed by the employer and
the ICC, in view of the sensitivities involved in relation to the topic of sexual harassment at the workplace.

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2. EVOLUTION OF THE LAW ON WORKPLACE SEXUAL HARASSMENT 02

I. The Vishaka Judgement 02

3. KEY PROVISIONS OF THE POSH ACT 05

I. Applicability and scope 05

4. EMPLOYER’S DUTIES AND OBLIGATIONS 15

“Prevention is better than Cure” 15

5. EXAMPLES OF CONDUCT AMOUNTING TO SEXUAL HARASSMENT 17

6. OTHER LAWS PERTAINING TO WORKPLACE SEXUAL HARASSMENT 19

I. Industrial Employment (Standing Orders) Act, 1946 19

7. FREQUENTLY ASKED QUESTIONS FOR HR 21

Hotline: Court Decides not to Interfere with Decision of Internal

Sexual Harassment Committee - Time for a Change! 25

Bombay Chartered Accountants’ Society - India’s Law on Prevention of

© Nishith Desai Associates 2023 Provided upon request only

Sexual Harassment at Workplace: Indian Government Introduces Platform

India’s Law On Workplace Sexual Harassment: Recent Judicial Interpretations 33

India’s Law On Prevention of Sexual Harassment at Workplace: Analysis of

India’s Law on Prevention of Sexual Harassment at Workplace:

© Nishith Desai Associates 2023 Provided upon request only

© Nishith Desai Associates 2023 Provided upon request only 1

2. Evolution of The Law on Workplace Sexual

I. The Vishaka Judgement

a. Physical contact and advances

b. A demand or request for sexual favours;

c. Sexually coloured remarks;

e. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

2 1997 6 SCC 241: AIR 1997 SC 3011

© Nishith Desai Associates 2023 Provided upon request only 2

2. Evolution of The Law on Workplace Sexual Harassment

II. Post Vishaka – Some Other Judgments

B. Medha Kotwal Lele & Ors. V. Union of India & Ors.

4 (1999) 1 SCC 759

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2. Evolution of The Law on Workplace Sexual Harassment

Legislative Timeline of POSH Act & POSH Rules

© Nishith Desai Associates 2023 Provided upon request only 4

3. Key Provisions of the POSH Act

I. Applicability and scope

5 Section 1 of the POSH Act

© Nishith Desai Associates 2023 Provided upon request only 5

3. Key Provisions of the POSH Act

II. What amounts to Sexual Harassment?

§ implied or explicit promise of preferential treatment in employment;

§ implied or explicit threat of detrimental treatment in employment;

§ implied or explicit threat about present or future employment status;

§ interference with work or creating an intimidating or offensive or hostile work environment; or

§ humiliating treatment likely to affect the lady employee’s health or safety. 11

8 Having less than 10 workers

© Nishith Desai Associates 2023 Provided upon request only 6

3. Key Provisions of the POSH Act

© Nishith Desai Associates 2023 Provided upon request only 7

3. Key Provisions of the POSH Act

§ Proximity from the place of work;

§ Such a residence has to be an extension or contiguous part of the working place.

Members Not less than 2 members from amongst employees.

The term of the IC Members shall not exceed 3 years

© Nishith Desai Associates 2023 Provided upon request only 8

3. Key Provisions of the POSH Act