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POSH Compliance Checklist

Legal Handbook on POSH Act

Important Case Laws

Supreme Court Guidelines on Sexual Harassment of Women at Workplace
Vishaka vs. State of Rajasthan, (1997) 6 SCC 241

The Supreme Court held that sexual harassment at the workplace was indeed violative of the fundamental rights guaranteed under Article 14, 15, 19(1) (g) and 21 of the Constitution of India. The court also acknowledged the lack of adequate legislation and loopholes which allowed such heinous crimes to thrive. In its judgment, the Court provided a set of guidelines for employers – as well as other responsible persons or institutions – to immediately ensure the prevention of sexual harassment, known as the Vishaka Guidelines. The law (POSH Act, 2013) was finally enacted for the prevention of sexual harassment against female employees at the workplace.

What Constitutes –“Sexual Harassment”?
Apparel Export Promotion Council vs. A.K Chopra, AIR 1999 SC 625

The Supreme Court ruled that physical contact was not essential for an act to amount to sexual harassment and thus expanded the scope of sexual harassment. The Supreme Court also laid down guidelines which should be followed by the courts while handling sexual harassment cases. However, this case was decided prior to enactment of POSH Act.
The court observed that, in sexual harassment cases, the disciplinary authorities are the sole judge of the evidence and courts should not adjudicate upon adequacy of evidence. The court further opined that the decisions of disciplinary authority should be upheld unless the punishment or penalty imposed by the Disciplinary Authority is either impermissible or such that it shocks the conscience of the Court.

Dr. Punita K. Sodhi vs. Union of India, 2010 172 DLT 409

The court endorsed the view that sexual harassment is a subjective experience. The court observed that the conduct, that many men consider unobjectionable, may offend many women and for that reason held that a complete understanding of the complainant’s view is required by the Internal Complaints Committee.

Shanta Kumar vs. Council of Scientific and Industrial Research, 2017 SCC OnLine Del 11388

The court ruled that all unwanted physical contact cannot be termed as sexual harassment. The Sexual Harassment law can be interpreted to imply that only behaviour that has sexual undertones can be considered to be sexual harassment

Gaurav Jain vs. Hindustan Latex Family Planning Promotion Trust, 2015 SCC OnLine Del 11026

The court held that in view of the provisions of section 13, the Internal Complaints Committee has the power to recommend punishment (even termination, as in this case) to be taken against the guilty respondent. The Court also stated that sexual harassment at the workplace can also mean a hostile and oppressive work environment for a woman employee when power and authority from a male member of the organization are being used to force her to accompany him on his outstation travels and late-night meetings. Sexual harassment covers myriad inappropriate behaviour, ranging from smoking in a female colleague’s presence to forcing her to stay in a male colleague’s hotel room for a work trip.

K.P. Anil Rajagopal vs. State of Kerala, (2018) 1 KLJ 106

The court observed that the very concept of sexual harassment in a workplace against a woman should start from an “express or implied sexual advance, sexual undertone or unwelcome behaviour which has a sexual tone behind it without which provisions of 2013 Act will not apply”. It made clear that a verbal statement from a man towards a woman with a negative undertone alone cannot suffice as a complaint of sexual harassment, in order to take action under the 2013 Act, the acts complained of should come within the purview of Section 2(n) and Section 3 of the Act or any other form of sexual treatment or sexual behaviour on the part of the alleged offender.

Sapana Korde Nee Ketaki A. Ghodinde vs. State of Maharashtra, 2019(1) Bom CR (Cri) 415

The Bombay High Court held that filing sexual harassment complaint against a person belonging to Scheduled Caste (“SC”) or Scheduled Tribe (“ST”) does not constitute an atrocity under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“Atrocities Act”) unless such complaint is prima facie proved to be false, malicious or vexatious.

Workplace under POSH Act
Saurabh Kumar Mallick vs. Comptroller & Auditor General of India, 151 (2008) DLT 261,

The court observed that, 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 difficult to define the term ‘workplace’ in straight jacket and the question of whether any place is workplace or not depends on facts and circumstances. On a note of caution, the court also observed that for proceeding against an employee in a departmental inquiry, one does not have to give such a sweeping definition of ‘workplace’ where it is interpreted to include the conduct of an employee which would have no relation to work.

Jaya Kodate vs. Rashtrasant Tukdoji Maharaj Nagpur University, 2014 SCC OnLine Bom 814

The court stated that the definition of ‘workplace’ under the POSH Act 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 unattended.

Biplab Kumar Das vs. IDBI Bank Ltd 2017, SCC OnLine Gau 358

The court observed that it is clear from the definition of 'workplace' provided under section 2(o)(v) of POSH Act that the place visited by the employee arising out of or during the course of his or her employment falls within the ambit of term ‘workplace’. Court held that cause of action or any part thereof did not arise in any place situated within the territorial jurisdiction of Gauhati High Court. Court further held that merely because appellant and respondent used to reside in Assam or appellant being posted in Golaghat at the relevant time, would not confer jurisdiction on the Gauhati High Court to entertain the writ petition.

Constitution of Internal Complaint Committee
Global Health Private Limited vs. Local Complaints Committee, District Indore, 2019 SCC OnLine MP 5453

The court observed that the provisions contained under the POSH Act must receive contextual meaning and are required to be interpreted broadly and liberally. The definition of sexual harassment given under law is inclusive in nature and provides that any one or more of the unwelcome acts or behaviour provided thereunder whether directly or by implication shall constitute sexual harassment. The court also imposed a penalty of Rs. 50,000.00 on the Hospital for not having a proper Internal Complaints Committee and held that the constitution of an Internal Complaints Committee is mandatory under the POSH Act.

Ruchika Singh Chhabra vs. Air France India, 2018 SCC Online Del 9340

The court held that the Internal Complaints Committee ("ICC") was not duly constituted under section 4(2)(c) of the POSH Act which requires one person from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment to be member of ICC. The constitution of ICC, its resultant proceedings, and the report submitted by it were declared to be invalid and the court directed reconstitution of ICC within 30 days to conduct fresh inquiry.

Jaya Kodate vs. Rashtrasant Tukdoji Maharaj Nagpur University, 2014 SCC OnLine Bom 814

The Court laid down that during the constitution of the Internal Complaints Committee, the members chosen ought to be committed to the cause of women or should have experience in social work or have legal knowledge. If any of the parties to the issue feel that an Internal Complaints Committee member is biased, the employer should take the effort to change that particular member.

Cross Examination before Internal Complaints Committee
L.S. Sibu vs. Air India Limited, 2016 SCC OnLine Ker 511

The court held that the Internal Complaints Committee constituted under the POSH Act has to follow the principles of natural justice in conducting their enquiry. Rule 7(4) of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 also indicates that Internal Complaints Committee shall follow the principles of natural justice. Court observed that as per section 18 of POSH Act, an enquiry conducted by the Internal Complaints Committee as to the fact finding is final unless it is varied in appeal. It cannot be varied by the employer in a follow up action to be taken in terms of Section 13.
The court further held that where the ICC is of the view that the complainant is not in a position to express freely, the Committee can adopt such other method permitting the delinquent to contradict and correct either by providing statement to the delinquent and soliciting his objections to such statement.

Ashok Kumar Singh vs. University of Delhi, 2017 LLR 1014

The court held that in a sexual harassment complaint, the Internal Complaints Committee ("ICC") has to verify and analyze the capability of the aggrieved to depose before them fearlessly without any intimidation. If the ICC is of the view that the aggrieved is feeble and cannot withstand any cross examination, it can adopt such other measures to ensure that the witnesses statement is contradicted or corrected by the delinquent in any manner either by providing statement to the delinquent and soliciting his objections to such statement. The fair opportunity has to be provided in the light of atmosphere of free expression of grievance. If the ICC is of the view that the witness or complainant can freely depose without any fear, certainly, the delinquent can be permitted to have verbal cross examination of such witnesses. Court further laid down the procedure for conducting inquiry proceedings before the ICC which involved cross examination of witnesses by way of a questionnaire.

Findings and Report of Internal Complaints Committee
Sarita Verma vs. New Delhi Municipal Corporation, 2016 LLR 785 (2)

The court observed that findings of Sexual Harassment Committee could not be ignored on vague and general grounds, without any discussions. The court referred to the case of Medha Kotwal Lele vs. Union of India, (2013) 1 SCC (CRI) 459 wherein it was held that the findings and the report of the Complaints Committee shall not be treated as a mere preliminary investigation or inquiry leading to a disciplinary action but they shall be treated as a finding/report in an inquiry into the misconduct of the delinquent.

K. Hema Latha vs. State of Tamil Nadu, MANU/TN/1414/2018

The court observed that a victim cannot be made to suffer to attend an enquiry conducted by Internal Complaints Committee ("ICC") by travelling more than 500 Km as this in itself amounts to harassment. The court further observed that even if there are some untruthful statements in the complaint, the competent authorities have to enquire them. Court held that the Internal Complaints Committee which conducted enquiry, didn't act in consonance with the provisions of Section 4 of the POSH Act and therefore, its report cannot be considered to be valid.

IX. Dual Role of Internal Complaints Committee - Investigation and Inquiry
Tejinder Kaur vs. Union of India, 2017 SCC Online DeL 12221

The court held that Internal Complaints Committee ("ICC") has a dual role. In the first stage, ICC has to act as an investigation agency and in the second stage, it acts as an Inquiring Authority only if the Disciplinary Authority is of the opinion that disciplinary proceedings should be initiated against the officer accused as provided, under rule 14(2) of Central Civil Services (Classification, Control and Appeal) Rules, 1965. Court observed that time limit for making complaint under second proviso to section 9(1) of POSH can be extended for a further period of three (3) months. Court also noted that no provision under POSH would entitle the Petitioner who was Presiding Officer of the ICC in this case to pursue the complaint on behalf of the aggrieved woman.

C vs. Indian Institute of Corporate Affairs, 2018 SCC Online Del 6801

The court observed that rule 14(2) of the Central Civil Services (Conduct) Rules, 1964 indicates that an inquiry into any misconduct or misbehaviour against a Government servant would commence only where the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputation or misconduct or misbehaviour. The proviso to rule 14(2) specifies that the Internal Complaints Committee would be the Inquiring Authority in cases where the complaint is of sexual harassment within the meaning of Rule 3(C) of the aforesaid rules. Court concluded that the Internal Complaints Committee would normally be involved at two stages. The first stage is investigation and the second stage is when they act as Inquiring Authority. Returning definite findings at first stage would give a cause to accused to claim at the subsequent stage that the Internal Complaints Committee had already made up its mind even before serving the copy of imputation of charges. This would frustrate the intention of ensuring that the ICC act as an Inquiring Authority.

Penalty - to be determined on the basis of Service Rules
Shital Prasad Sharma vs. State of Rajasthan, 2018 SCC OnLine Raj 759

The court held that rule 9 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 makes an exception where Service Rules exist. In such cases penalty will be determined by Service Rules. The court referred to rule 9 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 only to ascertain that termination of the service is not the only answer, there are several other actions which can be taken.

Effect of acquittal in criminal case (on same cause of action) on disciplinary proceedings
Mohan Kumar Singh vs. Chief Manager (HRD) Central Bank of India, 2017 SCC OnLine Pat 2483

The court didn't find force in the submission that as the petitioner was acquitted in the criminal case, the order of his dismissal from services was sustainable. Court observed that during the departmental enquiry, the victim and all other witnesses were examined. Many documents were produced to prove the charges that the petitioner sexually harassed the victim by repeatedly calling her on telephone and sending her message and photograph amounting to sexual harassment. Court held that the acts of the petitioner towards the victim amounted to gross misconduct and punishment awarded to petitioner was not disproportionate to the charge.

Duties of Employer under POSH Act
Vidya Akhave vs. Union of India, 2017 LLR 357

The court observed that the employer must sufficiently comply with the duties cast upon it under the POSH 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 Internal Complaints Committee must deal with complaints of sexual harassment in an expedited manner The Court also ruled that it would not interfere with an order of punishment passed by the Internal Complaints Committee in relation to a sexual harassment complaint unless the order is shockingly disproportionate.