POSH LAW UPDATE: How to define “sexual harassment” for determining limitation period as per the POSH Act.

In its recent judment of X v. State of West Bengal and Others (https://lnkd.in/g7zkJiYV) the Hon'ble Calcutta High Court succinctly explained how to determine the limitation period for a POSH complaint.

As per S.9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), the outer limit for filing a POSH complaint is 6 months. In the present case, the complaint was dismissed by the Local Complaints Committee (LCC) for being barred by limitation. The Court observed that "the question of limitation is a mixed question of law and fact and, therefore, the issue of limitation could not have been decided by the local committee at the threshold stage without evidence. The local committee, in deciding the issue of limitation, should accept the allegations made in the complaint at its face value. There is no occasion to examine the veracity of the allegations made in the complaint at the threshold stage."

To put it simply, the Court opined that whether a complaint falls within the period of limitation cannot be decided at the threshold stage and can only be decided once the evidence has been evaluated. If the alleged act of sexual harassment continued until within the time of limitation, the last date of incident should be considered to be applicable in such cases.

This then begs the question- what would constitute a continued act of sexual harassment? The Court held that along with the alleged acts of sexual harassment (which happened before March 2023), the act of retaliation, intimidation and creating a hostile work environment (which continued between April-December 2023) must also be considered to be "sexual harassment" as per s.2(n) of the POSH Act.

In conclusion, there are two things that must be noted-

1. A POSH complaint cannot be dismissed for being barred by limitation at the time of filing and the period of limitation must be decided taking into account the facts and circumstances of the case as well as evidence on record.

2. Acts of threatening, intimidation and/or creating a hostile work environment fall within the definition of "sexual harassment" and hence, the date of last incident must also account for these acts, if alleged.

Happy to answer any queries regarding this update or POSH compliance in general here or via email- [email protected]. The Outcast Collective

Written by-

Rutuja Shinde