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”

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•     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.