Employment Law Newsletter: Industrial Courts- The New Appellate Authority Under POSH Act- Aug 2021

If a person is aggrieved from the recommendations made by the internal committee under the POSH Act, “where should the aggrieved person file an appeal?”, is the question addressed by a recent notification issued by the government of the State of Maharashtra and the same is explained as under. This is true in the state of Maharashtra.

The Complaint Mechanism under POSH

Any complaint that is made by a complainant under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) and the Sexual Harassment of Women at Workplace Rules, 2013 (“POSH Rules”), first is reported to the Internal Committee (“IC”), in case of the organized sector and/or an organisation where more than ten (10) people have been employed, and to the Local Committee (“LC”), in case of an unorganized sector and/or where less than ten (10) people have been employed.

Such complaint has to be filed with the IC/LC with six copies of the written complaint along the details of the incident, the supporting documents and the details of the eyewitnesses if any. Further, the complaint must be reported to the IC/LC within 3 (three) months from the date of the incident and in case of a series of incidents, within 3 (three) months from the date of the last incident. Post submission of the complaint, the IC/LC take cognizance of the matter and initiates the inquiry into the matter and such inquiry, under Section 11(4) of the POSH Act, must be completed within 90 (ninety) days from the date of receipt of the complaint and the report of inquiry has to be issued within 10 (ten) days from the date of completion of inquiry.

On receipt of the recommendations made by the IC or the LC in the inquiry report, the employer is required comply with the recommendations within 60 (sixty) days of receipt of the inquiry report. In case any person is aggrieved from the recommendations made under in the IC/LC’s inquiry report or the non-compliance of such recommendations, as per Section 18 of POSH Act, read with Rule 11 of the POSH Rules, such person may appeal against the decision of the IC/LC within 90 (ninety) days from the date of recommendations.

As per Rule 11, POSH Rules, for an appeal, the Appellate Authority would be the one notified under clause (a) of section 2 of the Industrial Employment (Standing Orders) Act, 1946 (“SO Act”). Further, as prescribed under the SO Act an “appellate authority” is appointed by the appropriate Government by notification in the Official Gazette to exercise in such area as may be specified in the notification (“Appellate Authority”). However, such notification pertaining to Appellate Authority under POSH Act was not issued by the Government of Maharashtra until March 2021.

Notification and the Recent Developments

In the case of Dasharath Kallappa Bhosale v. State of Maharashtra & Ors. (WP No 786 of 2021), (“Dasharath Case”), the petitioner was accused of sexually harassing an employee (complainant) at a school. The petitioner here challenged the order passed by the LC, Pune, imposing penalty on the petitioner under the POSH Act. Further, an appeal was made before the Industrial Court, Pune, which was rejected on the ground that it lacked jurisdiction as no notification was issued as per Rule 11 of POSH Rules, appointing the Industrial Court as the Appellate Authority.

Pursuant to the Dasharath Case, a Notification- Misc -2021 /CR – 47/Lab-3 was issued by the Industries, Energy & Labour Department, and Maharashtra Government on March 31, 2021, appointing Industrial Courts as Appellate Authority in different districts for the State of Maharashtra under POSH Act (“Notification”).

Conclusion

The Notification clarified the Appellate Authority under POSH Act and as a result, Government of Maharashtra appointed 20 Industrial Courts for the respective areas to exercise the functions of an Appellate Authority under the POSH Act. This notification has thereby put to rest any ambiguity in relation with appeals pursuant to the recommendations by the IC/ LC under the POSH Act. This clarity will go a long way for the aggrieved party to file and an appeal and seek justice from the appropriate Industrial Court.