Compliances under POSH- Prevention of Sexual Harassment at Workplace - A...

 Vishakha Guidelines
Supreme Court of India Judgement 1997
(Ref: Vishakha and Ors. V State of Rajasthan)

 

•     SC laid down the guidelines and norms specified hereinafter for due observance at all work places or other institutions, until a legislation is enacted for this purpose. …and it is further emphasized that this would be treated as the law declared by this Court under Art. 141 of the Constitution.”

•     Estalished that  “Sexual Harassment violates a woman’s right in the workplace and is thus not just a matter of personal injury”

•     ==================

•     Sexual Harassment – Definition

Sexual Harassment includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely :

•     physical contact and advances; or

•     a demand or request for sexual favour; or

•     sexually colored remarks; or

•     showing   pornography; or 

•     other  offensive   or  derogatory   pictures, cartoons; or

any other unwelcome physical, verbal or non-verbal conduct of sexual nature

Aggrieved or Affected Women

´ All women working or visiting any workplace

•      Regular employee

•      Temporary employee

•      Adhoc

•      Daily wages

´ Engaged directly or indirectly (contractor)

´ Working for remuneration, voluntary or otherwise

´ Terms of employment may be express or implied

´ Could be a co-worker, contract worker, probationer, trainee, apprentice, visitor

´ Also covers woman working in dwelling place or house

 

 

Sexual Harrassment under Sec 354 A of the Indian Penal Code

Physical contact and advances involving unwelcome and explicit sexual overtures or

•      A demand of request for sexual favours or

•      Showing pornography against the will of a woman or

•      Making sexually coloured remarks

Imprisonment for upto 5 years or fine or both

 

 

Every employer shall--

(a)     Provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;

(b)    Display at conspicuous place in the workplace, the penal consequences of sexual harassments: and the order constituting, the Internal Committee under this law;

(c)     Organize workshops and awareness programmes at regular intervals for sensitizing the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;

(d)    Provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;

(e)     Assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;

 

DUTIES OF EMPLOYER

•       Every employer shall--

(a)  Provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;

(b)  Display at any conspicuous place in the workplace, the penal consequences of sexual harassments: and the order constituting, the Internal Committee under this law;

(c)   Organize workshops and awareness programmes at regular intervals for sensitizing the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;

(d)  Provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;

(e)  Assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;

 

DUE DILIGENCE FOR POSH COMPLIANCE

1.     Whether Company has formulated an internal policy / charter / resolution / declaration for prohibition , prevention & redressal of sexual harassment at work place. 2.     Whether Company has constituted an Internal Complaints Committee? 3.     Whether Company has displayed at conspicuous places in the factory about penal consequences of sexual harassment? 4.     Whether Company has organized workshops / awareness programs at periodic intervals? 5.     Whether Company has constituted the Local Complaints Committee (LCC)? 6.     Whether Annual Report has been filed with employer and district office on time?

Removal of Nominee Director by Passing a Special Resolution in an EGM @...

Removal of Nominee Director with majority in duly convened EGM giving special notice Facts of the case: 1st Appellant and 2nd Respondent jointly entered into a Consortium Agreement and agreed to form a partnership to submit a Resolution Plan to take over 1st Respondent Company. Resolution plan was submitted and approved by the COC as well as ratified by NCLT, Kolkata under Section 31 of Insolvency & Bankruptcy Code, 2016. 

As per mutual understanding nominee directors of both the parties were appointed in 1st Respondent Company. Appellant argued that due to several disputes which arose between both the parties, special notice was issued for removal of nominee director of Appellant from directorship and the resolution was passed in an EGM, thereby ousting the appellant from the consortium without giving a fair opportunity to give representation. Further, it was stated that in a quasi-partnership company or closely held company, a nominee director of the two partners cannot be removed, that too without any reason. 

Respondents argued that there is no bar for removal of nominee of minority shareholder under the Companies Act, 2013. Further, in spite of giving notice, no shareholders from 1st to 3rd appellant were present and thus they did not raise any objection to passing of the resolution for removal of nominee director and the removal has already been approved by the Registrar of Companies. 

Appellant were present. Judgement: The NCLAT held that as proper notice was issued to convene EGM and the same was received by the appellants including the nominee director, but they did not make any representation and the EGM voted for removal of nominee director with majority. Thus, there is no illegality in this process and dismissed the appeal. 

Ministry of Home Affairs advises NGOs on 3 basic requirements for switch...

1.Obtaining Darpan ID,

2.Opening FCRA a/c in SBI New Delhi main branch

3. Seeding Aadhaar no. of all office bearers — depending on whether they have applied for FCRA nod or are yet to.

 

Advisory for Compliance by FCRA NGOs/Associations with the Amended Provisions in FCRA, 2010 and FCRR, 2011

 

Note: -

This advisory is meant for any association that belongs to one of the following categories:

(a) Those who have submitted application for registration/Prior Permission

 (b) Those who have submitted application for Renewal

 (c) Those who are yet to submit application for registration/Prior Permission

(d) Those who are yet to submit application for renewal

 (e) those who hold valid FCRA registration/Prior Permission and are not in immediate of renewal of such certificate/PP.

 

i. The NGO/person may take note of the amendments in the FCRA, 2010 and ensure compliance. These amendments may be visited at (https://fcraonline.nic.in).

 

ii. The NGO/person may take note of the amendments in the FCRR, 2011 for compliance.

These amendments may be visited at (https://fcraonline.nic.in/home/PDF_Doc/fc_rules_12112020.pdf).

 

iii. Among various requirements arising from these amendments, three key compliances relate to:

(i)                   Obtaining a DARPAN ID from NITI Aayog portal;

(ii)             (ii) Opening the Main “FCRA Account” in SBI Parliament Street Branch, New Delhi; and

(iii)        Seeding Adhaar details of all office bearers. An advisory statement on these three key compliances is attached herewith. It may be accessed at (https://fcraonline.nic.in/home/PDF_Doc/fc_rules_12112020.pdf).

 

iv. Regarding compliance on FCRA “Bank Accounts”, a separate public notice dated 13.10.2020 has been issued with detailed clarifications, and it can be accessed at (https://fcraonline.nic.in/home/PDF_Doc/fc_notice_13102020.pdf).

A standard operating procedure (SOP) to be followed by all branches of SBI is placed on the web portal (https://fcraonline.nic.in/home/PDF_Doc/fc_sop_20112020.pdf) and also available on the web portal of the State Bank of India.

 

2. Every person/association is, therefore, requested to carefully peruse and familiarize itself with all the amendments in the Act and the Rules and related contents as indicated above to ensure thorough compliance.

 NGO’s proactive response would facilitate a quick and smooth transition to the amended legal regime.

 

(Office of FCRA Wing of Foreigners Division, MHA)

COMPLAINTS AND ENQUIRIES RELATING TO PROFESSIONAL MISCONDUCT OF COMPANY ...

Special Resolution under clause (ii) of regulation 17(6) (e) of LODR Reg...

Whether Special Resolution is to be passed if total remuneration paid to all executive promotor directors exceeds 5% of the net profits of a listed company under LODR?

SEBI held that in case if the aggregate remuneration payable to all executive promoter directors exceeds 5 per cent of the net profits, the Company shall be required to pass a special resolution under clause (ii) of regulation 17(6) (e) of LODR Regulations, subject to the condition that such approval of the shareholders shall be valid only till the expiry of the term of such directors.

 Manaksia Aluminum Company Limited raised the  following question with SEBI  

In terms of regulation 17(6)(e) of SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 (10DR Regulations’), it is understood that in case the listed entity has one executive promoter director, it can pay upto 2.5% of the net profits or rupees 5 crore, whichever is higher, without passing a special resolution.

 In case of more than one such director in the entity, there is only a limit of 5 per cent of the net profits and absolute limit is not specified.

whether the Company shall be required to pass a special resolution under clause (ii) of regulation 17(6) (e) of LODR Regulations for appointment of one more executive promoter director if the aggregate remuneration payable to all executive promoter directors exceeds 5 per cent of the net profits or an absolute aggregate limit of INR 5 crore shall also become applicable as mentioned in clause (i) of the said regulations.

 

clause (ii) of regulation 17(6) (e) of LODR Regulations prescribes only a percentage limit (i.e. where there are more than one executive directors who are promoters or members of the promoter group, the aggregate annual remuneration to such directors exceeds 5 per cent of the net profits of the listed entity) and no absolute limit has been specified.

In case if the aggregate remuneration payable to all executive promoter directors exceeds 5 per cent of the net profits, the Company shall be required to pass a special resolution under clause (ii) of regulation 17(6) (e) of LODR Regulations, subject to the condition that such approval of the shareholders shall be valid only till the expiry of the term of such directors.

It may also be noted that the above views are expressed by SEBI only with respect to the clarification sought in your letter under reference with respect to the LODR Regulations and do not affect the applicability of any other law or requirements of any other SEBI Regulations, Guidelines and Circulars administered by SEBI or of the laws administered by any other authority.

 

 

INVESTIGATION OF COMPLAINTS AGAINST COMPANY SECRETARY THROUGH ONLINE NOW...

 

 

G.S.R. 696(E).— 10^th November 2020

Company Secretaries (Procedure of Investigations of Professional and Other Misconduct and Conduct of Cases) Rules, 2007 (hereinafter referred to as said rules), in rule 2, in sub-rule (6), after clause (d), the following clause shall be inserted, namely:—

“(dd) “electronic mode” means and includes--

(i) filing of complaint, written statement, rejoinder, affidavits, or any other recognised electronic means or through the online portal; submissions and any other documents by email

(ii) online payment of prescribed fees or amount of fine or cost as may be imposed by the Board of Discipline or the Disciplinary Committee;

(iii) appearance and hearing through video conference or other audio visual means;

(iv) service of notices or summons or communications by email or any other recognized electronic means;”.

 

Service of Notice

in clause (a), after the words, “at his professional address”, the words, “or at email address as per the records of the Institute or such other recognized electronic modes”, shall be inserted;

(ii) in clause (b),

(a) after the words, “address of its head office”, the words, “or at email address as per the records of the Institute” shall be inserted;

(b) after the words, “maintained by the Institute”, the words, “or such other recognized electro

MCA Proposes Decriminilization of offences under LLP Act @ R V Seckar

The ministry of corporate affairs (MCA) has proposed to decriminalise certain compoundable offences under LLP Act, involving minor, procedural or technical violations “In order to provide greater ease of doing business in India to law abiding LLPs” it said. In a public draft on Friday, the MCA listed 20 sections of the LLP Act, ranging from registration or change of designated partners to maintaining books of accounts to the improper use of the words ‘LLP’, seeking public comments and stakeholder consultations given the importance and large scale impact of the proposal. “It has been decided to review the penal provisions of the Act to decriminalize compoundable offences...which may not involve any harm to public interest,” the draft said. However, all the sections it mentioned are punishable by only a fine of varying amounts and not imprisonment. Experts suggested that this particular exercise could be to streamline the fine amounts. “Not all criminal offences involve imprisonment, those with a fine amount are also criminal in nature as the offender can be taken to court to decide the liability,” Decriminalisation here implies the fine can be decided by regulators like the Registrar of Companies instead of the case going to court, The move was aimed at incentivising compliance, de-clogging the criminal justice system and promoting congenial business climate, the ministry said. “As a part of the current initiative, the Ministry of Corporate Affairs seems to be planning for an overhaul of penalty provisions applicable for filing or reporting non-compliances by the partners of limited liability partnership firms, which do not involve substantial violations or are contrary to the larger public interest,” The government has taken a series of such actions with decriminalisation of certain offences under the Companies Act earlier, and more recently a proposal to decriminalise minor offences under the financial laws. “Subsequent to the proposed decriminalisation of various offences under the Companies Act, 2013, the Government has turned its eye towards limited liability partnerships, a legal entity form commonly used by small and medium enterprises for doing business in India,”

NOW , TOP 1000 LISTED ENTITIES SHOULD CONSTITUTE RISK MANAGEMENT COMMITT...

SEBI on November 10, 2020  proposed extending the requirement of constituting a risk management committee to top 1,000 listed entities from 500 at present. The risk management committee should meet at least twice in a year from the current practice of minimum one meeting every year.

Considering the multitude of risks faced by listed entities, risk management has emerged as a very important function of the board. Further, the COVID-19 pandemic has reinforced the need for a robust risk management framework, as per SEBI.

While LODR (Listing Obligations and Disclosure Requirements) norms specify the role of various board committees of listed entities, defining the role and responsibilities of the risk management committee (except for cyber-security risk) is left to individual boards of listed entities.

 

SEBI has propsed the "requirement of constituting a risk management committee may be extended from the top 500 to the top 1,000 listed entities, on the basis of market capitalisation".

 

Sebi has suggested that quorum for a meeting of the committee should be either two members or one-third of the members of the panel, whichever is greater. This includes at least one member of the board of directors in attendance.

Company’s risk management committee would formulate a detailed risk management policy which will include a framework for identification of internal and external risks specifically faced by the listed entity. The risks include financial, operational, sectoral, sustainability (specifically, environmental, social and governance related risks and impact), information and cyber security.

The committee should be responsible for taking measures for risk mitigation, business contingency plan as well as monitoring and overseeing implementation of the risk management policy, It should also be responsible for keeping the board informed about the nature and content of its discussions, recommendations and actions to be taken.

Risk management committee should also have powers to seek information from any employee, obtain outside legal or other professional advice and secure attendance of outsiders with relevant expertise, if it considers necessary.

The appointment, removal and terms of remuneration of the chief risk officer, if any, would be subject to review by the risk management committee, jointly with the nomination and remuneration committee.

Further, the risk management committee should coordinate its activities with the audit committee in instances where there is any overlap with audit activities. It should ensure that appropriate methodology, processes and systems are in place to monitor and evaluate risks associated with the business of the listed entity, according to SEBI

 

SEBI INVESTOR GRIEVANCE NOTIFICATION & EXTENSION OF LLP SETTLEMENT SCHE...

AND STOCK EXCHANGES SHOULD MONITOR AND KEEP RECORDS NOW.

SEBI Circulars Investor Grievance Redressal Mechanism (November 6, 2020)

In order to further strengthen the Investor Grievance Redressal Mechanism, SEBI has issued clarification to its circular dated August 11, 2010, February 09, 2011, and September 26, 2013 where it has clarified that Stock Exchange shall ensure that the investor complaints shall be resolved within 15 working days from the date of receipt of the complaint. Additional information, if any, required from the complainant, shall be sought within 7 working days from the date of receipt of the complaint. Stock Exchange shall maintain a record of all the complaints addressed/redressed within 15 working days from the date of receipt of the complaint/additional information.

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MCA Notification for extension of LLP Settlement Scheme 2020 –

MCA Circular 37/2020 dated 9 November 2020

In continuation to this Ministry’s General Circular no 13/2020 dated 30-3-2020 and in the General Circular No 31/ 2020 dated 28-9-2020 , the scheme was extended till 31^st December 2020 in view of large scale disruption caused by the Covid-19 pandemic and after due examination , it has been decided to extend the date on applicability of defaulting LLP and therefore, in serial number 3, para 8A, sub-para (iii) of the said circular dated 30-3-2020 , belated documents due for filing till 30^th November 2020 shall be substituted. All other requirements provided in the said circulars shall remain unchanged.