Introduction
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 also known as the POSH Act was enacted in India to ensure a safe and harassment-free work environment for women.
A crucial aspect of the Act is the establishment of an Internal Committee (IC). In accordance with the provision of Section 4(1) of the Act, it is mandatory for every employer of a workplace, having 10 or more employees to constitute a committee known as Internal Committee. It further provides that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the Internal Committee shall be constituted at all administrative units or offices.
The IC is responsible for addressing and handling complaints pertaining to sexual harassment at workplaces, ensuring compliance with the POSH Act.
The Presiding Officer of the IC plays a pivotal role in the functioning of the IC and ensuring fair and just proceedings. This article explores the role of the Presiding Officer, the eligibility criteria, practical challenges organizations face that shall aid in highlighting the importance of an effective functioning IC.
- Constitution of Internal Committee
Pursuant to Section 4(2) of the POSH Act, the IC shall consist of the following members to be nominated by the employer, namely- A Presiding Officer who shall be a woman employed at senior level at workplace from amongst the employees;
- Not less than two members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge and
- One External Member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment.1
Provided that at least one-half of the total Members so nominated shall be women.
- Eligibility Criteria of the Presiding
Officer
Pursuant to Section 4(2) of the POSH Act, the Presiding Officer is the head of the Internal Committee and must be a woman employed at a senior level at workplace from amongst the employees.
As per the POSH law, the eligibility criteria for the Presiding Officer includes- Must be a woman;
- Should be at a senior level; and
- Must be from amongst the employees
The intention behind appointing a senior woman employee is to ensure that the aggrieved woman feels comfortable in addressing her complaint and that the inquiry process remains fair and unbiased.
- What if Senior Woman Employee is not
available?Despite the clear mandate, organizations often
face difficulties in appointing the Presiding Officer. Some common
challenges include non-availability of senior female employee.Many
organizations, particularly in male-dominated industries like
manufacturing or logistics struggle to comply with this requirement
in cases where no senior woman employee is available. Recognizing
this challenge, the Act provides flexibility in the appointment of
Presiding Officer. To ensure compliance and maintain the
effectiveness of the IC, the POSH Act lays down certain alternative
solutions which includes
- The Act states that in case the senior woman employee is not available in a particular workplace, the Presiding Officer can be nominated from other offices or administrative units of the same workplace;
- Further, in case the senior woman employee is not available even in other offices or administrative units, the law allows organizations to nominate the Presiding Officer from any other workplace of the same employer or from another department or organization.
This proviso ensures that even if a company or organization lacks a senior female employee in a particular branch or office, they can still form a legally compliant IC by drawing their larger organizational structure.
- Can Presiding Officer be of lower rank than the accused?Another key challenge that organizations face while appointing the Presiding Officer under the POSH Act is the question of seniority. A pertinent issue that arises is whether the Presiding Officer can be of a lower rank than the respondent (accused) against whom the complaint of sexual harassment has been made. This concern was brought to light in the case of Shital Prasad Sharma vs State of Rajasthan and Ors (April 06, 2018)2, highlighting the ambiguity surrounding the seniority of the Presiding Officer. In this case, the petitioner challenged the validity of the constitution of the Internal Committee, contending that the composition of the IC was illegal since the Presiding Officer/Chairperson of the IC was of a lower rank than the petitioner/accused. The petitioner, holding the substantive post of Additional Director and serving as Director, contended that the Deputy Director appointed as the Presiding Officer was not of the required senior level, thereby vitiating the composition of the IC. The petitioner further argued that the other IC Members were also subordinate to him, thus claiming that the inquiry conducted by an officer of a lower rank was vitiated. The Hon'ble Rajasthan High Court, while referring to Section 4(2) of the POSH Act, ruled that the appointment of the IC's Presiding Officer was legal and valid. The court emphasized that the only requirement under the law is that the Presiding Officer must be a woman employed at a senior level in the organization. The petitioner's contention that the inquiry should be conducted only by an officer of equal or higher rank was deemed baseless. "It is only important to note that the said Committee was constituted in the year 2014 for a term of three years, as per the requirement of Section 4(3) of the Act of 2013. The said Committee has looked into different complaints received against the employees of the department from time to time and the Committee was not constituted only for the purpose of investigating the complaint lodged against the petitioner alone. The blame of the petitioner that a junior officer in rank, has conducted enquiry against him has no substance," the court remarked. The court further emphasized that the submission of the petitioner is also not acceptable for the reason that the Committee cannot be constituted as per the hierarchy of the officials against whom complaints are received of committing sexual harassment. The only requirement is that there has to be woman employed at a senior level. Therefore, once a Committee is constituted as per Section 4 of the POSH Act, there cannot be change of Presiding Officer as per rank of official against whom charge of sexual harassment is framed. A similar issue arose in Smt Shobha Goswami vs. State of U.P. and Ors. (May 27, 2015)3where the petitioner sought the reconstitution of the IC, arguing that the Committee should include a female member who was senior in rank to the accused. The Hon'ble Allahabad High Court however, rejected the argument, reiterating that Section 4 of the Act does not require female member to be senior in rank to the officer against whom the allegation of sexual harassment are brought. The only requirement is that the lady member must be of senior level within the organization.
Conclusion
Organizations must ensure that their IC is constituted in compliance with Section 4 of the POSH Act and not be swayed by objections regarding the Presiding Officer's rank. As long as the Presiding Officer/Chairperson is a senior level woman employee, her appointment is valid and legal.
Shreya Bhushan, Intern at S.S. Rana & Co. has assisted in the research of this article.
Footnotes
1. Refer to Section 4(2) of the POSH Act
2. https://indiankanoon.org/doc/73651374/
3. https://indiankanoon.org/doc/116669790/
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