PoSH Act: Updates of January 2023

Legal developments in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) (PoSH) Act, 2013 intrigue us at Ungender.

As a corporate professional, HR leader, or founder, this affects you as well because these developments reflect your need to adopt these practices in implementing the PoSH Act of 2013 at your workplace.

The law is changing constantly with legal developments. Today’s article discusses a brief overview of the PoSH judgments that were pronounced in January 2023, more specifically:

• Can the proceedings of the PoSH Committee be quashed if the inquiry is not completed within 90 days?
• What happens if an FIR is filed against the accused even after the PoSH Committee did not find them guilty?

PoSH Committee’s timeline to complete the inquiry within 90 days under the PoSH Act:

On 11 January 2023, the Delhi High Court made a crucial observation that all PoSH Committee members need to take note of:

1. Even if the Committee fails to complete the inquiry within the 90 days timeline that is laid down under Section 11(4) of the PoSH Act, 2013, the inquiry proceedings will not be quashed, and
2. The 90 days timeline “cannot be said to be mandatory.”

In this case, the petitioner is a Chartered Accountant and sought that the proceedings must be quashed because the PoSH Committee could not complete the inquiry within 90 days. 

Another observation that the Court made was that the petitioner could not point out any prejudice that the delay caused him.

It was also noted that such complaints “deserve to be treated with a certain amount of seriousness and responsibility” and have to be inquired into and “taken to their logical conclusion” in the interest of both the complainant and the respondent,

Further, Justice Vikas Mahajan observed that “I am prima facie of the view that the complaint of sexual harassment and the inquiry proceeding emanating therefrom cannot be quashed merely for the reasons that the internal complaints committee (ICC) failed to complete the inquiry within the time frame given in Section 11(4) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (POSH).”

Also read: 10 Guiding Pointers for ICC Members during a PoSH Investigation

FIR against respondents quashed as the PoSH Committee had discharged them after inquiry under PoSH Act

The Delhi High Court recently quashed an FIR filed against two employees of an MNC who were already discharged from all charges against them by the PoSH Committee. The two employees had allegedly sexually harassed an intern. However, after conducting the inquiry, the PoSH Committee exonerated the respondents.

A crucial point in this pronouncement is the question of law that the Court was dealing with — if the PoSH Committee discharges the accused of all charges, will the FIR filed against them still continue?

The Court noted that:

1. The Committee was formed as soon as the FIR was filed and the inquiry proceedings were held,
2. Soon after, the complainant wrote to the PoSH Committee that she did not wish to pursue her complaint,
3. However, the Committee continued the proceedings even when the complainant did not produce herself for cross-examination,
4. During the inquiry proceeding the provisions of the PoSH Act, 2013 were duly complied with, and
5. The v gave the Final Report based on merits and after investigating the facts.

The Court observed that the FIR only made general and not specific allegations against the accused and if the proceedings that arise out of the FIR continue, “it will be misuse of power and exercise in futility.”

Recent reports pertaining to workplace sexual harassment

Sexual harassment allegations against the WFI president

Recent sexual harassment allegations against the Wrestling Federation of India’s president by wrestlers are something that all of us have heard of. What this has especially shed a light on is the illegal constitution of the PoSH Committee at the WFI.

Constituting the PoSH Committee is the duty of the employer under Section 4 of the PoSH Act, 2013. If the employer fails to follow the rules laid down in the PoSH Act to constitute their PoSH Committee, they can face legal consequences.

As an HR professional, employer, or leader in your workplace, here are 4 basic points you need to keep in mind while constituting the PoSH Committee for your company:

• Your PoSH Committee should be headed by a senior-level female employee,
• An external member should be nominated to act as a neutral party in your PoSH Committee,
• It should have at least 4 members including the external member, and
• At least half of the members of your PoSH Committee should be women.

It is important that you and your company pay attention to these basic guidelines of PoSH Committee composition and constitution to avoid legal consequences.

Also read: Constitution of the Internal Committee and why it matters

NCW’s concern over the unsatisfactory implementation of the PoSH Act

The National Commission of Women (NCW) has expressed concern over the increasing instances of sexual harassment in coaching institutes and educational institutions. It stated that the on-ground implementation of the PoSH Act, 2013, needs to be more satisfactory. 

It is crucial that employers take note of the effective implementation of the PoSH act, 2013 in their workplaces. While the NCW’s concern stays limited to educational institutions in the above observation, it wouldn’t be unfair to say that corporate India can still do better. Moreover, it is time that PoSH ceases to be treated like a compliance checklist.

Further, NCW also noted that the non-implementation of the PoSH Act amounts to the violation of a woman’s fundamental rights as stated in Articles 14, 15, 19, and 21 of the Indian Constitution.

In this regard, NCW Chairperson, Rekha Sharma, wrote to Chief Secretary, Sanjeev Kaushal, and requested he direct concerned authorities for the proper implementation of the PoSH Act, Rules, and UGC Guidelines.

Also read: Implementing PoSH in Higher Education Institutions in India

At Ungender, our team of experts works every day to make workplaces safer and more inclusive for their teams. Besides providing end-to-end compliance with the PoSH Act, 2013, we also ensure that you stay up-to-date with the latest developments in workplace sexual harassment law. Write to us at contact@ungender.in or leave a message here to build a safe workplace for your team.