---Every Employer of Every Workplace in India is Legally Duty-bound to "i) Provide Protection to Women from Sexual Harassment at Workplace and ii)Prevent, Prohibit and Redress of Complaints of Sexual Harassment and matters connected therewith and incidental thereto.
There is No Exemption or Immunity, to any Employer, whatsoever to any Employer/ Management. In short, Every Employer, as defined in the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act 2013, is Legally Liable to Create a Safe and Secure Workplace Where No Woman Shall Be Subjected to Sexual Harassment.
In the Case Study under reference, the Employer of the Establishment/Institution that employed the Aggrieved Woman, named in the Case, failed in his/her Duty to provide Protection to her and therefore is liable to be levied Penalties stipulated in the Section-26 of the said Act of 2013;
The Employer is also liable for abetting the violation of the Aggrieved Woman's Fundamental Rights namely Right to Life with Dignity as guaranteed in our Constitution and the Right to Practice/pursue any Profession/avocation etc.
The Employer, in faithful and proper fulfillment of his/her Duty under Section-19 (g) of the SHWW Act of 2013, at this stage even must provide
all reasonable assistance to the Aggrieved Woman who is declining to raise/submit Written Complaint for any reason whatsoever, best known to her, to lodge/File an FIR under IPC Sections.
Since the Employer under reference failed in his/her Duty to provide Protection to the Aggrieved Woman, s/he need not wait for mere Technical Formality of receiving a Formal Written Complaint or in absence thereof await its submission but must proceed with asking one of its Executive or One of the Internal Committee Member in his/her Establishment to conduct a prima facie Fact Finding Preliminary Inquiry to ascertain the Facts/Details and based on which must Immediately refer the SH Complaint to the Chairperson of the Local Committee in whose jurisdiction the
alleged Harassers Workplace is located. The LOCAL Committee is empowered to deal with SH Complaints against the Head of such Establishment's Workplace
Her Employer should not act upon the Resignation Letter since submitted till her SH Complaint is duly and diligently disposed off and the Employer/the Management must get her Medically Examined thoroughly for assessment of injuries if any inflicted upon the Aggrieved Woman.
Disciplinary Action must immediately be initiated against the Immediate Superiors of the Aggrieved Woman who, individually and collectively failed to provide Protection knowing fully well that she (Aggrieved Woman) was deployed by them to visit the Workplace of the Distributors or at any other Workplace to interact with him/them in furtherance of the Prospective Business Deal of the Supplier Establishment.
Also, to make the Superiors and all other Managers, Supervisors, and Employees AWARE of their Duties, the Employer must Quickly Organize Awareness Programs. And look and behold-- the IC Members of the Establishment where the Aggrieved Woman worked appear to be inactive, uninvolved???
Ignorance of the Law is No Bliss and let Every Employer realize that especially those who are Registered under the Companies Act 1956 and are required to File with the ROC their Company's Annual Return including Non-Financial Disclosure under Section-134.
We, the Spl Educators Team at Kritarth call upon all and Any Person who Supervise, Manage and Control the Workplace and all others to join Hands and act together in adopting Effective Mechanisms to Co-Creat a Safe and Secure Workplace Where No Woman shall be subjected to Sexual Harassment, anymore, forever.
Spl Educators Team Kritarth,
Bengaluru Service Center,
17th April 2018
There is not an iota of doubt that the employer has failed in his duty imposed upon him in relation to the POSH Act, 2013.
But I am not in complete agreement with the advice rendered by my friend Kritarth. There may be various situations which may emerge from the followings and it could be an endless debate, however:-
1. Without a written Complaint from the "aggrieved woman", suo moto inquiry by IC may only lead it to suggest further precautionary measures to the employer. At the most the Contract with the Distributor may be clinched (although that may also have business repercussions as a suo moto action from one party without giving other party giving a chance to rebut the charge levied against him - civil or criminal - will have no meaning in the eye of law as it is devoid of any evidence.) Thus, in accordance with the rules laid down under the POSH Act, a written complaint is must from the aggrieved woman, for IC to take the matter in hand, which is missing in the present case.
2. The resignation of the "aggrieved woman" should be accepted otherwise the employee may file a complaint to the Magistrate under section 26 of the POSH Act attributing the charge of abatement on the part of employer. However, before accepting her resignation, she should be asked to state reason of tendering her resignation. If she tenders resignation on account of sexual harassment, the case must be referred to IC. If it is tendered for any other or personal reason, it should be accepted and her accounts settled. It is advisable that she should be asked reason of her resignation in writing so that the employer has an opportunity to say that despite asking, she did not disclose any sexual harassment or any lapse on the part of employer.
3. I agree to the other inputs given by Kritharth.