What constitutes a ‘workplace’ under POSH Act?

In a case discussing the interpretation of “workplace” under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH), the Bombay High Court held that a shared autorickshaw used by an employee for commuting to work does not constitute a “workplace” unless the transport is provided by the employer.

The High Court, in its judgment dated June 16, set aside the findings of an Internal Complaints Committee (ICC) that had held a State Bank of India (SBI) employee guilty of sexual harassment based on an incident that occurred during such travel. The case arose when the petitioner, an SBI employee was travelling in a share auto rickshaw with the respondent.

The court stated that in the present case, although the petitioner was going to his office, the said transportation had not been provided either by his employer or Respondent 3’s employer. In these circumstances, such transportation would not fall within the definition of a “workplace” as defined by Section 2(o)(v), POSH Act. Thus, the Court held that the alleged incident had not taken place at a “workplace”.

The court has not yet gone into the merits of the controversy, i.e. whether the petitioner had sexually harassed respondent No.3 in the shared autorickshaw or not. The said aspect of the matter is left open to be dealt with in accordance with the law in an appropriate proceeding.

This prompts the question, what constitutes “workplace” under POSH Act?

According to Section 2(o) of the POSH Act, the workplace includes any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate government, the local authority, a government company, a corporation or a cooperative society.

It includes any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities, including production, supply, sale, distribution or service.

It also includes hospitals or nursing homes, any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto.

In addition to this, any place visited by the employee arising out of or during the course of employment, including transportation by the employer for undertaking such a journey, a dwelling place or a house, especially with respect to domestic help, comes under the workplace definition.

In relation to a workplace, “unorganised sector” means an enterprise owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever, and where the enterprise employs workers, the number of such workers is less than ten.

Although the Act does not expressly refer to virtual workspaces, the courts have interpreted the definition broadly to include digital and remote workspaces.

The scheme of the POSH Act itself is drawn from the monumental judgment of the Supreme Court in Vishaka v. State of Rajasthan in a writ petition under Article 32 of the Constitution of India filed by social activists, NGOs and public-spirited persons, where the Court came up with various guidelines to enforce the fundamental right of ‘gender equality’ and ‘right to life and liberty’ under Articles 14, 15, 19(1)(g) and 21 of the Constitution of India.

While the Vishaka Guidelines were confined to the traditional office set-up, recognising the fact that sexual harassment may not necessarily be limited to the primary place of employment, the POSH Act has introduced the concept of an ‘extended workplace’.

To look at judicial precedents, in Saurabh Kumar Mallick v. Comptroller & Auditor General of India, the Delhi High Court observed that the workplace, as defined in the Vishakha Guidelines, cannot be interpreted in literal terms. With the scope of the Internet and technology rapidly increasing, it is significant to interpret the term ‘workplace’ widely to prevent sexual harassment in unusual workplaces.

In Sanjeev Mishra v. Disciplinary Authority and General Manager, Bank of Baroda & Ors., the Rajasthan High Court held that in a workplace setting on a digital platform, two employees cannot be said to be working from separate workplaces even if they are in separate geographical locations.

The use of social networks such as WhatsApp, Messenger, Viber, Facebook, etc. is not excluded from the scope of the workplace. Sending messages in any form (textual, graphic, video, or audio) is by no means less susceptible to consideration in assessing a colleague’s harassment. This opinion was held by the Delhi High Court in the case of Jahid Ali v. Union of India.

In Sanchayani Sharma v. National Insurance Company Ltd, the Delhi High Court held that sexual harassment need not be physical in nature and can also include verbal or non-verbal conduct, such as unwelcome advances, comments or gestures.

Judicial decisions indicate that the concept of a workplace under the POSH Act extends beyond a physical office and may include virtual workspaces and employment-related interactions. However, as the Bombay High Court’s recent ruling shows, the connection between the location and the employment relationship remains crucial.