Sexual Harassment of Women at Workplace Act 2013

 The Protection of Women from Sexual Harassment (POSH) Act, 2013, primarily aims to prevent and redress sexual harassment of women at the workplace. While the Act is designed to protect the rights and dignity of women who are victims of sexual harassment, it also includes provisions to ensure that the accused individuals are treated fairly and have their rights upheld. Here are some key rights of the accused under the POSH Act:

Right to a Fair and Impartial Inquiry: 

The accused has the right to a fair and impartial inquiry into the allegations of sexual harassment. The Internal Complaints Committee (ICC) or the Local Complaints Committee (LCC), responsible for conducting the inquiry, must ensure that the process is unbiased and follows the principles of natural justice.

Right to Be Informed: 

The accused has the right to be informed of the allegations made against them. They should receive a written complaint or notice detailing the charges and any evidence provided by the complainant.

Right to Present a Defense: 

The accused has the right to present their side of the story and provide evidence in their defense during the inquiry. They can also bring witnesses to support their case.

Right to Legal Representation: 

The accused has the right to be represented by a legal counsel or a representative during the inquiry proceedings. They can seek legal advice and support to navigate the process.

Right to Cross-Examination: 

The accused has the right to cross-examine the complainant and any witnesses provided by the complainant during the inquiry. This allows the accused to challenge the evidence presented against them.

Right to Privacy: 

The identity of the accused should be kept confidential during the inquiry to protect their reputation and privacy. The Act prohibits the disclosure of the accused person's identity without their consent.

Right to No Retaliation: 

The accused has the right to protection against any form of retaliation or adverse action taken by the employer or colleagues as a result of the complaint. It is illegal to victimize or discriminate against the accused for participating in the inquiry.

Right to Appeal: 

If the accused is dissatisfied with the findings of the ICC or LCC, they have the right to appeal the decision to the appropriate authority as specified in the Act.

Right to Due Process: 

The accused has the right to due process, which includes timely and transparent proceedings, notice of hearings, and an opportunity to be heard.

It's important to note that while the POSH Act provides these rights to the accused, it also emphasizes the importance of balancing these rights with the need to protect the rights and dignity of the complainant. The Act is designed to ensure a fair and just resolution of complaints of sexual harassment while upholding the principles of natural justice for both parties involved.

Maharashtra sets up Appellate Authority for POSH Matters

A writ petition was filed before the Bombay High Court under Article 226 by Dasharath Kallappa Bhosale (“Petitioner”) in the matter of Dasharath Kallappa Bhosale vs. State of Maharashtra & Ors. and Bombay High Court on 11th March 2021 asked concerned authorities if a notification under Rule 11 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“POSH Rules”) regarding Appellate Authority existed and if not then within how much time they will issue said notification.

Sexual Harassment of Women at Workplace

The background leading to this is that the Local Complaints Committee, Pune found the Petitioner guilty of sexual harassment and had imposed a penalty on him under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”).

The Petitioner being aggrieved by Local Committee’s order preferred an appeal before the Industrial Court, Pune. The Industrial Court rejected the appeal on the ground that they have no jurisdiction to entertain the appeal and said that “no notification has been issued in the name of the Industrial Court as per rule 11 of Prevention of Sexual Harassment Rule 2013.”

In this context it is important to look at Section 18 and Rule 11 of POSH Act & Rules. Section 18 of the POSH Act states that “Any person aggrieved from the recommendations made under sub-section (2) of section 13 or under clause (i) or clause (ii) of sub-section (3) of section 13 or sub-section (1) or subsection (2) of section 14 or section 17 or non-implementation of such recommendations may prefer an appeal to the court or tribunal in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist then, without prejudice to provisions contained in any other law for the time being in force, the person aggrieved may prefer an appeal in such manner as may be prescribed.”

Rule 11 of POSH Rules states that “…any person aggrieved from the recommendations made under sub-section (2) of section 13 or under clauses (i) or clause (ii) of sub-section (3) of section 13 or sub-section (1) or sub-section (2) of section 14 or section 17 or non-implementation of such recommendations may prefer an appeal to the appellate authority notified under clause (a) of section 2 of the Industrial Employment (Standing Orders) Act, 1946 (20 of 1946).”

The Bombay High Court after considering the abovementioned ordered on 11th March 2021 that an affidavit be filed by the concerned officer explaining whether they issued the notification under Rule 11 of the POSH Act to notify the Appellate Authority, if not, then within how much time they will issue said notification to notify the Appellate Authority.

In response of the same, over 7 years after the passing of the POSH Act, the Government of Maharashtra being an appropriate Government appointed 20 Industrial Courts constituted under section 10 of the Maharashtra Industrial Relations as the Appellate Authority to exercise the functions of an Appellate Authority under the POSH Act in respect of the Industrial Establishments in relation to which the State Government is the appropriate authority.