What are key provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and how it is different from Vishaka guidelines?

 Key Provisions of the POSH Act

1. Definition of Sexual Harassment

The POSH Act defines sexual harassment broadly, including unwelcome acts such as:

- Physical contact and advances.

- Demand or request for sexual favors.

- Making sexually colored remarks.

- Showing pornography.

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

2. Applicability

The Act applies to:

- All workplaces in India, including public and private sectors.

- Women of any age, whether employed or not, who allege to have been subjected to sexual harassment.

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Whether presiding officers of Internal complaints committed are entitled to get protection from mala fide transfer?

 We are further of the prima facie view that when an officer, by virtue of a post, is also a Presiding Officer or Member of the ICC, ordinarily there should be security of tenure. The principles which apply to security of tenure of Judges and Presiding Officers of various quasi-judicial tribunals

would, in our opinion, also apply to Members/Presiding Officers of ICC.

The Supreme Court in Madras Bar Association Vs. Union of India (2014) 10 SCC 1 held that all Courts are Tribunals; any Tribunal to which any existing jurisdiction of Court is transferred should also be a Judicial Tribunal, meaning inter alia that the Members of the Tribunal should have the independence and security of tenure associated with Judicial Tribunals.

The Presiding Officers and Members of ICC, in our view, are also ‘Judges’ within the meaning of Section 19 of the Indian Penal Code, 1960. PerSection 11 (3) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 also, for the purpose of making an inquiry, ICC has the same powers as are vested in a Civil Court under Code of Civil Procedure, 1908 in the matter of summoning and enforcing attendance of any person and examining him on oath and

requiring discovery and production of documents. {Para 8}

9. The counsel for the respondents CRPF appearing on advance notice

has strongly opposed the contention aforesaid and has argued that there is no

hard and fast rule of the tenure at a post being of three years and for

administrative exigencies, officers/personnel can always be transferred even

prior to three years.

10. Undoubtedly, so. However, once the personnel/officer by virtue of a post also occupies the position as aforesaid, the administrative exigencies, in our view, have to be weighed vis-à-vis the consideration of the need for security of tenure, inasmuch as, else there would always be apprehension that on returning unfavourable findings, the sword of transfer would be

brought down.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 6712/2021

NEERAJ BALA  Vs  UNION OF INDIA & ORS. 

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

HON'BLE MR. JUSTICE AMIT BANSAL

Dated: 19.07.2021

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Whether the Internal Complaints Committee can recommend disciplinary action against lady making a complaint of sexual harassment?

 The constituted ICC, upon analysing the complaint, came to the

conclusion that the relationship between the Petitioner and Respondent No.3

were based on personal grounds with mutual consent, and that the

allegations of sexual, emotional and mental harassment were not

substantiated by the Petitioner. Thus, the complaint against the Respondent

No. 3, was rejected. However, the ICC did not stop there. The ICC went on

to make an observation that the behaviour of the parties had been

inappropriate and unbecoming of Officers/Employees of the Bank, and

accordingly the ICC recommended the Competent Authority to take suitable

action against the Petitioner and the Respondent No. 3, as deemed fit.

As per the above provisions, if the allegations of sexual harassment or

any other form of harassment, as contemplated under the Act, are not proved

before the ICC, the ICC can only recommend the employer to not take any

action in the particular matter. However, the ICC, in the present case, has

gone beyond its statutory mandate, as recognised under Section 13(2) of the

Act. It has, in fact, given observations stating that both the parties i.e., the

Petitioner and the Respondent No.3 have indulged in inappropriate/

unbecoming conduct and indiscipline, and has recommended the competent

authority to take suitable action against them. Giving such a

recommendation is clearly beyond the jurisdiction of the ICC.

15. Complaints of sexual harassment are initially filed with enormous

reluctance. The power of the ICC to hold the enquiry and give a report

ought to be within the scheme and the four corners of the statute itself. If a

case of sexual harassment is not made out, the ICC can only conclude that

no action is required to be taken. On the other hand, if a case of sexual

harassment is made out, then the recommendation of the ICC can only be for

taking appropriate action for misconduct, in accordance with the provisions

of the service rules as contained within Section 13(2) and 13(4) of the Act.

16. It is not contemplated within the provisions of the Act that while

holding that no action is to be taken and the complaint is to be rejected, the

ICC can direct for suitable action on the ground that the parties have

indulged in an inappropriate conduct. Such a determination and

consequential recommendation is beyond the jurisdiction of the ICC.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 16th December, 2020

W.P.(C) 3249/2017 & CMAPPL. 14126/2017

BIBHA PANDEY Vs PUNJAB NATIONAL BANK

CORAM:

JUSTICE PRATHIBA M. SINGH

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Important provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

[Act 14 of 2013 as amended up to Act 23 of 2016]

Chapter I

PRELIMINARY

1. Short title, extent and commencement.—(1) This Act may be called the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

(2) It extends to the whole of India.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. Definitions.—In this Act, unless the context otherwise requires,—

(a) “aggrieved woman” means—

(i) 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;

(ii) in relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house;

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