Skip to main content

Posh law - Procedure as the Handmaiden of Justice": Overcoming Technical Loopholes in POSH Enforcement.

A recurring vulnerability in employment law is the weaponization of hyper-technical procedural rules to shield severe workplace misconduct. In high-stakes disciplinary actions, respondents frequently scour dense, legacy civil service rules or ancient standing orders to find minor administrative omissions, using them to stall, invalidate, or completely quash severe penalties. In Arun A. Iyer v. IIT Bombay, the Bombay High Court forcefully addressed this issue, reminding corporate and institutional employers that "procedure is the handmaiden of justice," designed to facilitate equity rather than act as a technical loophole for evasion. The Court observed that a highly formalistic, myopic approach cannot be adopted when interpreting enforcement mechanisms under specialized, welfare-driven legislations like the POSH Act . When an autonomous institution or a corporate entity possesses a robust internal framework that explicitly outlines how sexual harassment complaints are investi...
Post a Comment

UNDERSTANDING JURISDICTION RELATED TO THIRD PARTY SEXUAL HARASSMENT. WHEN DOES THE IC GET INVOLVED?

Posh Lawyer india

Introduction - What is Third Party Sexual Harassment?

Sexual harassment in connection with the workplace, isn't only limited to the workplace (as a premises) or one's colleagues (as the respondent). It extends to third party workplaces, and third party individuals like consultants, independent contractors, clients, or other non-employees associated with the workplace, irrespective of the premises where the sexual harassment may have occurred.

Employers need to provide employees with a safe working environment where their safety and security is prioritised, especially if third parties are involved.

IC's Jurisdiction and When It Can Refuse

Under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), women can file complaints on acts that took place at the workplace even against third parties, irrespective of whether they work at their place of employment.

In line with the PoSH Act, the employer is responsible for taking necessary steps, and reasonably assisting the aggrieved and affected parties, in the event of occurrence of third-party sexual harassment.

In such a case, the onus is on the aggrieved to decide whether the matter should be investigated by the organisation's Internal Committee (IC) or whether it should be referred to the police. The aggrieved also has a choice to pursue both parallelly. Therefore, the IC does have jurisdiction to preside over matters at the workplace, and at workplace-sponsored events.

If the third party is from a different organisation, the IC may forward the complaint to the IC of the respondent's organisation or do a joint investigation.


Training Internal Committee on Understanding Jurisdiction & Compliance with PoSH Policy

Sexual harassment, especially when perpetrated by a third party, may arise anywhere and in arny situation.

The IC of each organisation need to be trained to deliberate not just on matters which clearly fall under the purview of their jurisdiction, but also on how to handle matters where there may be overlapping jurisdiction.

Additionally, the Internal Committee should also know when to refer the aggrieved to the Local Committee/ Local Complaints Committee (LC/LCC). Local committees are formed under the jurisdiction of the District Officer in every district in a state. Their jurisdiction extends to organisations that employ less than 10 employees and cases where the sexual harassment complaint is directly against the employer.

It becomes extremely important for Internal Committees to fully understand and pre-empt the extent of such situations and ensure people are aware of, and comply with, the company's internal POSH policy. Awareness measures are the most effective tools in ensuringa safe and healthy work culture.

Poshadvo guides employees to understand third-party sexual harassment and provides IC members continuous training. This allows employees and members to gain a wider perspective on how to deal with cases that fall under the ambit of third-party sexual harassment, and whether or not a matter falls under their jurisdiction.


Reach out to us on contact@poshadvo.com for the answer key or call us on +91-9958484845

Note: This article is not a substitute for legal advice or consulting with a lawyer, who will be in a better position to advise you with respect to the facts and circumstances of your case, but merely a tool to help the reader understand better about laws relating to prevention of sexual harassment in the workplace.



Labels:

Comments

Post a Comment

Popular posts from this blog

Saurabh Kumar Mallick v. CAG: Reinforcing the Reach of the POSH Act in Government Institutions.

In a landmark judgment, the Delhi High Court delivered a resounding verdict that extended the applicability of the Prevention of Sexual Harassment (POSH) Act to government organizations, including constitutional bodies like the Comptroller and Auditor General of India (CAG). The case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India (2018) was a pivotal moment in ensuring that the principles of the POSH Act are upheld across all spheres of employment, irrespective of the nature or status of the organization. The Crux of the Case The case arose from a petition filed by Saurabh Kumar Mallick, an Assistant Audit Officer employed with the CAG, who alleged that he had been subjected to sexual harassment by a superior officer. Mallick claimed that despite filing a formal complaint, the CAG failed to take appropriate action or constitute an Internal Complaints Committee (ICC) as mandated by the POSH Act. The CAG, in its defense, argued that as a constitutional body, it w...
Post a Comment
Read more

Filing a Complaint under the POSH Act: Procedure and Timelines

The Prevention of Sexual Harassment ( POSH ) Act, 2013, was enacted to create a safe workplace environment and ensure that incidents of sexual harassment are addressed promptly and effectively. A key aspect of the Act is the process by which employees can file a complaint if they experience sexual harassment at work. This article delves into the complaint filing procedure under the POSH Act, including the essential timelines, extensions, and rights of the complainant. 1. Who Can File a Complaint under the POSH Act? The POSH Act allows any aggrieved woman to file a complaint if she has faced sexual harassment in the workplace. The complainant can be: • A woman employed in any capacity (temporary, permanent, part-time, or full-time). • An employee in an organization (including interns and contractual staff). • A woman visiting the workplace or a client of the organization. Additionally, if the complainant is unable to file a complaint due to physical or mental incapacity or for oth...
Post a Comment
Read more

Strengthening POSH Compliance: The Role of Internal Complaints Committees (ICCs)

  Posh law in India A crucial aspect of the Prevention of Sexual Harassment ( POSH ) Act, 2013, is the establishment of Internal Complaints Committees (ICCs) in organizations. These committees play a pivotal role in ensuring workplace safety, handling complaints effectively, and fostering a culture of zero tolerance for harassment. Understanding the Role of ICCs The ICC is responsible for addressing workplace sexual harassment complaints and ensuring a fair, unbiased resolution process. Key functions include: • Receiving and Redressing Complaints – ICCs must ensure that victims feel safe reporting incidents and that complaints are handled with confidentiality and sensitivity. • Conducting Investigations – The committee must carry out impartial inquiries, gather evidence, and recommend appropriate actions. • Recommending Disciplinary Action – Based on findings, ICCs have the authority to suggest penalties, policy changes, or preventive measures. • Ensuring Awareness and Comp...
Post a Comment
Read more