Quick answer: Under Section 26(1) of the POSH Act, an employer who fails to constitute an Internal Committee under Section 4(1) can be fined up to ₹50,000. A repeat conviction makes it liable to twice the punishment and can cost its licence or registration. Courts act only on a complaint from the aggrieved woman or a person authorised by the Internal Committee or Local Committee.
This post walks through Section 26 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act No. 14 of 2013, enacted on 22 April 2013 and in force from 9 December 2013), with two court examples.
What exactly does Section 26 punish?
Section 26(1) lists three kinds of failure by an employer:
- failing to constitute an Internal Committee under Section 4(1);
- failing to take action under Sections 13, 14 and 22;
- contravening, attempting to contravene or abetting a contravention of any other provision of the Act or the rules made under it.
For any of these, the employer “shall be punishable with fine which may extend to fifty thousand rupees”. So the same ceiling covers a workplace with no committee and one that ignores the committee’s recommendations under Section 13 or leaves POSH cases out of its annual report under Section 22.
Section 4(1) itself is simple: every employer of a workplace shall, by an order in writing, constitute the committee. It sets no headcount. The 10-worker figure comes from Section 6(1), which tells every District Officer to constitute a Local Committee in the district to receive complaints of sexual harassment from establishments where the Internal Committee has not been constituted because they have fewer than 10 workers, or where the complaint is against the employer himself.
What happens on a first offence and on a repeat offence?
| Stage | What the law provides | Section |
|---|---|---|
| First conviction | Fine which may extend to ₹50,000 | 26(1) |
| Second conviction for the same offence | Twice the punishment which might have been imposed on a first conviction, subject to the maximum provided for that offence | 26(2)(i) |
| Second conviction, business permissions | Cancellation of the licence, or its withdrawal or non-renewal, or of approval, or cancellation of the registration, as the case may be, by the Government or local authority required for carrying on the business or activity | 26(2)(ii) |
| Higher penalty in another law | The court takes due cognizance of it while awarding punishment | Proviso to 26(2)(i) |
A worked example makes the difference clear. Suppose a firm with 40 staff has never issued a written order constituting a committee. A former employee who was sexually harassed at the firm files a complaint before a magistrate, and the firm is convicted: the fine can go up to ₹50,000. If it still does nothing and is convicted again of the same offence, it is liable to twice the punishment that might have been imposed on a first conviction, and its licence or registration can be cancelled, withdrawn or not renewed. For many businesses, that matters far more than the fine.
Who can file a complaint, and which court hears it?
Section 27 sets the gate. No court takes cognizance of an offence under the Act or its rules except on a complaint made by the aggrieved woman, or by a person authorised by the Internal Committee or the Local Committee in this behalf. No court below a Metropolitan Magistrate or a Judicial Magistrate of the first class can try the offence, and every offence under the Act is non-cognizable.
Has any employer actually been convicted under Section 26?
Yes. LiveLaw reported in December 2020 that a Metropolitan Magistrate at Patiala House Courts, Delhi, convicted SriLankan Airlines under Section 26 of the Act. The complaint came from a former woman employee who had worked as a sales executive in the airline’s Delhi office. The court found a violation of Section 4(1): the airline was required to constitute an Internal Complaints Committee, and its policy did not comply. Sentencing arguments were listed for a later date.
A committee set up under the airline’s own SPASH policy did not help: the court held that this policy was not in compliance with Section 4(1), which requires every employer to constitute an Internal Committee by an order in writing.
What did the Madhya Pradesh High Court order in the Indore hospital case?
In Global Health Private Limited v. Local Complaints Committee, District Indore (W.P. No. 22317 of 2017, heard with W.P. No. 22314 of 2017), Justice Rohit Arya of the Madhya Pradesh High Court, Indore Bench, passed an order on 16 September 2019. The Chief Executive Officer of the District Panchayat, Indore, had earlier directed a penalty under Section 26 for the hospital’s “failure to constitute the internal complains committee”, acting on the Local Complaints Committee’s report.
The High Court said “the existence of the internal complaints committee itself is doubtful at the Hospital” and said the committee’s annual reports filed for 2015 and 2016 appeared to be “a paper formality not in existence at the Hospital”. It held the complainant entitled to compensation of ₹25,00,000 (₹25 lakh), covering pain and suffering, loss of reputation, emotional distress and eighteen months’ salary, to be deposited within eight weeks or carry 9% interest a year. It also directed the hospital to pay the ₹50,000 penalty under Section 26, if not already paid, within four weeks.
Is having a committee enough to stay safe?
No. Section 26(1) also covers failure to act under Sections 13, 14 and 22, and any other contravention of the Act or rules. The duties of the employer under Section 19 fall within the “other provisions” that Section 26(1)(c) covers. Under Section 19, the employer must, among other things:
- provide a safe working environment at the workplace;
- display at a conspicuous place the penal consequences of sexual harassment, and the order constituting the Internal Committee;
- organise workshops and awareness programmes at regular intervals for sensitising employees, and orientation programmes for committee members;
- provide the necessary facilities to the Internal Committee or the Local Committee for dealing with complaints and conducting an inquiry;
- assist in securing the attendance of the respondent and witnesses, and make information available to the committee;
- provide assistance to the woman if she chooses to file a complaint under the Indian Penal Code or any other law;
- cause action to be initiated under the Indian Penal Code or any other law against the perpetrator, including, if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace where the harassment took place.
Section 25 adds another layer: where it is necessary in the public interest or in the interest of women employees, the appropriate Government can, by written order, require an employer to furnish information on sexual harassment, and can authorise an officer to inspect records and the workplace.
Frequently asked questions
Section 26(1) of the POSH Act provides a fine which may extend to ₹50,000 for an employer who fails to constitute an Internal Committee under Section 4(1). The same ceiling applies to failing to act under Sections 13, 14 and 22.
Under Section 26(2), a repeat conviction for the same offence makes the employer liable to twice the punishment that might have been imposed on a first conviction. The employer’s licence or registration can also be cancelled, withdrawn or not renewed by the Government or local authority.
Section 27 says a court can take cognizance only on a complaint by the aggrieved woman, or by a person authorised by the Internal Committee or the Local Committee. The case is tried by a Metropolitan Magistrate or a Judicial Magistrate of the first class.
Section 4(1) itself has no headcount. The 10-worker figure is in Section 6(1), which sends complaints from establishments without a committee because they have fewer than 10 workers to the Local Committee set up by the District Officer.
Yes, in the Indore hospital case. On 16 September 2019, the Madhya Pradesh High Court held the complainant entitled to ₹25 lakh in compensation, and in the same order directed the hospital to pay the ₹50,000 penalty under Section 26.
No. In the SriLankan Airlines case reported by LiveLaw, the airline said it had a committee under its SPASH policy, but a Delhi magistrate held that policy was not in compliance with Section 4(1) and convicted the airline under Section 26. Section 4(1) requires a committee constituted by an order in writing.
How can you check your Internal Committee today?
Start with the free POSH committee check to see where your committee stands. For the full picture of what an employer must set up, see the Manas Center POSH page, and for common questions on penalties, reports and filings, read the POSH FAQ. Where you need an External Member for your committee, Dr. Priya Dubey Sharma, Founder & Consulting Psychologist, serves in that role.
Sources
- Section 26, Sexual Harassment of Women at Workplace Act, 2013 (Indian Kanoon)
- Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, full text (Indian Kanoon)
- Global Health Pvt. Ltd. v. Local Complaints Committee, District Indore, MP High Court, 16 September 2019 (Indian Kanoon)
- LiveLaw: Delhi court convicts SriLankan Airlines under Section 26 for not constituting an Internal Committee
Plain-language guides to POSH compliance for Indian employers, based on the Act, the Rules and court rulings. POSH compliance at Manas Center is led by Dr. Priya Dubey Sharma, Founder & Consulting Psychologist, as External Member.
