Supreme Court directed states and UTs to Notify “District Officer” under POSH Act
The Supreme Court issued these instructions in response to a writ petition filed under Article 32 of the Indian Constitution by the Initiatives for Inclusion Foundation" seeking effective implementation of the POSH Act's provisions.
Supreme Court directed states and UTs to Notify “District Officer” under POSH Act in the case of Initiatives For Inclusion Foundation v. Union of India Citation: 2023
The Supreme Court has issued a slew of directives to the Union government and all state and UT governments to ensure that the provisions of the Sexual Harassment at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act), read with its Rules, are effectively implemented.
Among them is the Court’s mandatory directive that the states and union territories appoint a “District Officer” in accordance with Section 5 of the Act. Despite the fact that Section 5 states that the appropriate government may notify a District Magistrate or Additional District Magistrate, or the Collector or Deputy Collector as a District Officer, the Court interpreted this as a mandatory condition.
Treating Section 5 as a directory would leave a gaping hole in the otherwise clearly delineated workflow and redressal mechanism, and the efficacy of this legislation, as a result, falls flat,” observed a bench comprising Justices S Ravindra Bhat and Dipankar Datta.
The bench issued these instructions in response to a writ petition filed under Article 32 of the Indian Constitution by the Initiatives for Inclusion Foundation” seeking effective implementation of the POSH Act’s provisions.
It is also worth noting that in Aureliano Fernandes v. State of Goa Ors, a bench of Justices AS Bopanna and Hima Kohli issued a set of directions to strengthen the implementation of the POSH Act.
The Court specifically directed NALSA and SLSAS, as well as the National Judicial Academy and State Judicial Academies, in their capacities, to develop modules for workshops and awareness programs. Given that the directions passed overlap with the scope of the current writ petition, the Court reiterated those directions in its decision.
A district officer has an important role
Section 4 requires every employer to establish an internal complaints committee. To fill the gaps where there is no ICC (e.g., for those working in a workplace with fewer than ten employees or where the employer is the respondent), the Act establishes a local committee in each district, which is to be appointed by the district officer.
The Court went on to say that the District Officer is also responsible for appointing a nodal officer in each block, taluka, and tehsil in rural or tribal areas, and ward or municipality in urban areas, to receive complaints and forward them to the relevant LC.
“The role of the district officer is pivotal; they are responsible for numerous aspects of the Act’s implementation,” the Court stated. It is, in a sense, where the buck stops in terms of POSH Act coordination and accountability. Even in terms of payment and fees, the district officer is in charge of paying allowances to the chairman and members of the LC, which it receives from the State government-established agency.”
The Court observed that most states only notified District Officers after being served with a notice of this writ petition, and that even among those states that have taken action, they have simply notified a specific post as District Officer without providing any specific details about the officers, their contact information, etc. Most states have not provided documentation on the formation of LCs, and even those that have, many have not established one in each district.
The petitioner referred to the affidavits filed by the Union of India, stating that these affidavits highlighted the generation of awareness through a massive publicity campaign, issuance of advisories, publication of handbooks, and so on.
“However, it is quite plainly clear that though the generation of awareness is necessary, if a woman suffers sexual harassment at the workplace, the framework for redressal has to in fact exist.”
“The failure to notify district officers specifically has a cascading effect on the appointment of LCs and nodal officers, among other things.” “The complaint mechanism and larger framework, no matter how effective, are rendered ineffective if the authorities specified in the Act are not duly appointed or notified,” the Court observed.
“Therefore, the State/UT government must ensure that every district, at all times has a notified District Officer; in case of vacancy caused by retirement, or any other reason, it must be duly remedied, to enable smooth transition between officers, and ensure that there is always someone incharge of this position. Furthermore, effort has to be undertaken to orient, train and sensitise these district officers, with regards to the provisions of the Act and Rules, with an emphasis on their roles and obligations. Similar range of activities must be conducted for the nodal officers appointed and LCs constituted by each district officer,” it stated.
The Court issued the following directions in this regard:
Within four weeks of the date of this judgment, the concerned Principal Secretary of the State/UT Ministry of Women and Child (or any other Department) will personally ensure the appointment of a district officer in each district within their territorial jurisdiction, as contemplated by Section 5.
Accordingly, each appointed district officer must: (a) appoint nodal officers in each block, taluka, and tehsil in the rural or tribal area, and ward or municipality in the urban area, in accordance with Section 6(2); (b) constitute an LC, as contemplated by Sections 6 and 7 of the Act; and (c) ensure that the contact details of these nodal officers and LCs are forwarded to the nodal
In accordance with Sections 21(1), (2), and 22, each district officer of the state must collect reports from the IC or employers (or information where no report is available) and from the LC, as well as prepare a brief report to be shared with the state government.
Operationalizing the Act for the unorganized sector
The petitioner stated at the outset that the inclusion of definitions of “domestic worker” and “unorganized sector” in the Act has broadened its scope of application.
The composition and role of the LC, the district’s foundational body, are also important, particularly for the unorganized sector.
This committee is led by a nominated chairperson who is an eminent woman in the field of social work and committed to the cause of women; one member is nominated from women working in a block/taluka/tehsil (rural) or ward/municipality (urban); and two more are nominated from NGOs or associations committed to the cause of women or a person familiar with issues relating to sexual harassment.
The inclusion of nominees from such NGOs is also beneficial, because women find it easier to approach local NGOs in a context where LCs may convey a sense of formality; this is one of the findings in a 2015 International Labour Organization (ILO) report.
However, it was pointed out that there is no legal avenue for these non-governmental organizations to register or pursue the matter on behalf of such consenting women. As a result, raising awareness about LCs and dispelling the air of formality should be a top priority for the highest-level state seeking to implement the Act.
Directions Issued In This Regard Are:
Once nominated by the state, the district officers are hereby directed to identify non-governmental organizations working with women and their protection within the district and to take action in accordance with their duty under Section 20(b) to raise awareness.
The relevant government or district officers must also make efforts to raise awareness about the existence of LCs and make them accessible to the unorganized sector, thereby putting this Act’s horizontal import into action.
The other directions passed are as follows:
Coordination between the Union Government and the States/UTs It was directed under this heading that the Women and Child Development Ministry of each state or UT, through its principal secretary, consider identifying a “nodal person” within the department to oversee and aid in coordination as contemplated by the POSH Act. This person would also be able to coordinate with the Union Government on issues concerning the Act and its implementation.
Furthermore, each state or UT government must submit to the Union Government an 8-week consolidated report on its compliance with the following directives.
Amendments and gaps in Rules that State must fill
The Union Government should consider amending the Rules to make Section 26 of the Act operational by recognizing a reporting authority and/or a fine collecting authority. This directive must be read in light of the Judgment’s discussion in paragraphs 8 (the role of the district officer in relation to annual compliance reports) and 21 (on the penalty regime contemplated in the Act and resulting gaps in the Rules).
Training and capacity building
District Officers and Local Committees (LCs) should be required to receive training on their important responsibilities. Given their role in the Act’s redressal framework, they must first be educated on the nature of sexual harassment, gendered interactions in the workplace, and so on. Furthermore, it was stated that state governments must organize periodic and regular training sessions at the district level for the district officer, members of the LC, and nodal officers to attend.
Larger efforts towards awareness
In accordance with Section 24, the state/UT governments and union governments were directed to outline the financial resources allocated and/or required to develop educational, communication, and training materials for raising public awareness of the provisions of this Act, as well as orientation and training programs.
Annual Compliance Reports
In accordance with Sections 21(1), (2), and 22, each district officer of the state must collect reports from the Internal Complaints Committee (IC) or employers (or information where no report is available) and from the LC, as well as prepare a brief report to be shared with the state government.
Monitoring of ICs and compliance by employers
In furtherance of the direction issued in Aureliano Fernandes v. State of Goa & Ors., which addresses most specifically the constitution of ICs in public establishments and some private establishments, it was directed that efforts be made in accordance with the scheme of the Act and through the authorities so designated for the various roles.
Similarly, hospitals, nursing homes, sports institutes, stadiums, sports complexes, or competition or game venues are directed to establish ICs and report compliance with the duties imposed by this Act.
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