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Note on Sexual Harassment of women at workplace Act 2013

The sexual Harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereafter the Act) is a law, that seeks to protect women from sexual harassment at their working place. The bill related to this was passed by the Lok Sabha on 3rd September and on 26th February, 2013 by Rajya Sabha, and further got assent of the President on 23rd April, 2013.

CS Arjun Tyagi

A Guiding Note on The Sexual Harassment of women at workplace (Prevention, Prohibition, and Redressal) Act, 2013

Introduction

The sexual Harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereafter ‘the Act’) is a law, that seeks to protect women from sexual harassment at their working place. The bill related to this was passed by the Lok Sabha on 3rd September and on 26th February, 2013 by Rajya Sabha, and further got assent of the President on 23rd April, 2013. This Act came into force from 9th December, 2013. This Act extends to whole India. This Act ensures that women are protected against sexual harassment at all the work place, be it in public or private. Further it contributes to relaisation of their right to gender equality, life and liberty in working conditions everywhere. The sense of security at the workplace improves women’s participation in work, resulting in their economic empowerment and inclusive growth.

Prior to passing of this law, the matters related with sexual harassment was directed by the guidelines laid down by the Hon’ble Supreme Court of India in Vishaka and others V. State of Rajasthan and others (AIR 1997 SC 3011) popularly known as “Vishakha Guidelines”. By these guidelines Hon’ble court mandatorily imposed some duties on employers in respect to provide mechanism in order to prevent the commission of acts related with sexual harassment and further provides effective resolution of the cases related with sexual harassment and prosecution of acts of sexual harassment. Under these guidelines Hon’ble Supreme court also defined the term ‘Sexual Harassment’. The Supreme Court further held that the guidelines and norms as provided by the court would be strictly observed in all work places for the preservation & enforcement of the right to gender equality of the working women.

The aforementioned guidelines issued by the Hon’ble Supreme Court of India was treated as Law declare by the Supreme Court of India under Article-141 of the Constitution of India. After these guidelines were issued it was observed by the various courts of the country that the guidelines and norms framed by the hon’ble supreme court are not implementing by the employer strictly at the workplaces and there is a need of Comprehensive and detailed legislation on sexual harassment at workplace and its prevention & redressal mechanism. After a long period of almost 16 years of Vishaka Guidelines, Government of India passed a comprehensive law on sexual harassment at workplace i.e. ‘The sexual Harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013’ Act No. 14 of 2013. This statute superseded the ‘Vishaka Guidelines’ for prevention of sexual harassment at workplace framed by the Hon’ble Supreme Court.

Objective of the Act

The main objective for enacting this law by the parliament is to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith and incidental there to. Sexual harassment is also results in violation of the woman’s fundamental right to equality, guaranteed by the Indian constitution under Articles 14 & 15 and also right to life and to live with dignity as under Article 21 of the constitution of India.

Further, sexual harassment is also results in violation of a right to practice any profession or to carry on any occupation, trade or business which includes a right to safe environment free from sexual harassment.

Additionally; to align with the requirements of the international conventions & instruments that have been ratified by the Indian Government related with recognized human rights, which also includes protection of woman against sexual harassment at workplace.

Sexual Harassment

The act defines the term Sexual Harassment on the line as it was defined by Hon’ble SC in “Vishaka Guidelines”.  Section 2(n) of the act defines sexual harassment as follow:

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

i. Physical contact and advances; or

ii. A demand or request for sexual favours; or

iii. Making sexually coloured remarks; or

iv. Showing pornography; or

v. Any other unwelcome physical, verbal or non- verbal conduct of sexual nature;”

Section 3(1) of the act clearly states that “No woman shall be subjected to sexual harassment at any workplace”. Sub-section (2) of section-3 also speaks about certain circumstances if occurs or present in relation/ connected with any act/ behavior of sexual harassment, may amount to sexual harassment, these are as follow:

i. Implied or explicit promise of preferential treatment in her employment

ii. Implied or explicit threat of detrimental treatment in her employment

iii. Implied or explicit threat about her present or future employment status

iv. Interference with her work or creating an intimidating or offensive or hostile work environment for her

v. Humiliating treatment likely to affect her health or safety.

Committee(s) under the Act (Primary Grievances Redressal Forum)

The act stipulates the setting of primary grievances redressal forums in the form of committee(s) to hear and redress the grievances pertaining to sexual harassment at work place as per the prescribed provisions of the Act.

There are two main committee(s) as prescribed by the act, these are:

I. Internal Complaints Committee

II. Local Complaints Committee

All provisions in respect of these committee(s) are discussed below in table form:

Sr. No. Particulars Internal Complaints Committee (ICC) CHAPTER-II (Sec-4) Local Complaints Committee (LCC) CHAPTER-III( Sec-5-8)
1 Constitution

Every employer of a workplace having more than ten workers shall constitute this committee by an order in writing.

District Officer(as notified by the Appropriate Government) shall constitute this committee for the concerned District.

2 Where it will be constituted

At all Administrative units or offices, if any.

In every District
3. Composition This committee shall have following members to be nominated by the employer:-
  • A Presiding officer(women employed at senior level amongst the employees)
  • Not less than two members from amongst employees preferably committed to the cause of women or have had experience in social work or have legal knowledge.
  • One member from NGO or associations committed to the cause of women or a person familiar with issues relating with sexual harassment.

At least half of the total members so nominated shall be women

This committee shall have following members to be nominated by the District Officer:-
  • A Chairperson (amongst the eminent women in the field of social work & committed to the cause of women)
  • One member (working in block, taluka or tehsil or ward or municipality in the district)
  • Two members, amongst one shall be a woman from NGO or associations committed to the cause of women or a person familiar with issues relating with sexual harassment.

At least one of the nominee should preferably have a background in laws or legal knowledge

Further at least one of the nominee shall be a women belonging to SC,ST,OBC or minority community notified by CG

  • Concerned officer dealing with social welfare or women & child development in the district shall be a member ex officio
4

Tenure of committee members & other conditions

  • The Presiding officer including every member shall hold office for a period not exceeding 3 years.
  • The member appointed from NGO & Associations shall be paid fee or allowances as specified by the employer
  • The Chairperson including every member shall hold office for such period not exceeding 3 years.
  • The chairperson &  members shall be entitled for fee or allowances as specified by the DO except members nominated under sec-7(1) clauses (b),(d).

> Where the presiding officer or members of ICC and Chairman or members of LCC as the case may be

a. Contravenes the provisions of section 16 of the Act; or

b. has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him; or

c. he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or

d. has so abused his position as to render his continuance in office prejudicial to the public interest.

Such Presiding officer / Chairman or member as the case may be shall be removed from the committee and the vacancy so created or any casual vacancy shall be filed by fresh nomination in accordance with provision of the Act. [Sec.-4(5) & 7(3)]

Complaint & Inquiry into Complaint (Section 9 to 18) (Chapter IV & V)

As per the provision of section 9(1) of the act, “any aggrieved woman may make, in writing, a complaint of Sexual Harassment at workplace to the Internal Committee if constituted or the Local Committee, in case it is not so constituted, within a period of Three Months from the date of incident or in case of series of incident within a period of three months from the date of last incident.”

In case complaint cannot be made in writing PO/Chairman/members of ICC & LCC as the case may be shall render reasonable assistance to the woman for making the complaint in writing.

Further provided that ICC/LCC may for the reasons to be recorded in writing may extend the time limit not exceeding three months.

Sub section(2) authorize her legal heir or such other person as may be prescribed for making complaint under the provision of the act, if aggrieved woman is unable to make a complaint on account of her physical/mental incapacity or death or otherwise.

Conciliation process to settle the matter can also be initiated between the parties, only on the request of the aggrieved woman in this behalf, but in any case no monetary settlement is allowed under the act on the basis of conciliation. Section 11 stipulates the provisions to proceed to make inquiry into complaint by ICC/LCC as the case may be, in accordance with the provisions of the act. Sub Section (4) of Section 11 states that inquiry initiated under section11 (1) shall be completed within a period of 90 Days.

Power of committee(s)

Section 11(3) of the act stipulates that for the purpose of making inquiry under the provisions of the act ICC/LCC shall have the same powers as are vested in civil court under the Code of Civil procedure, 1908 when trying a suit in respect of:

I. summoning and enforcing the attendance of any person and examining him on oath

II. requiring the discovery and production of documents

III. any other matter which may be prescribed.

Interim relief during inquiry

As per the provision of section-12(1) of the act, during the pendency of an inquiry, on a written request by the aggrieved woman, the ICC/LCC as the case may be may recommend the employer to:

a) to transfer the aggrieved woman/respondent to any other workplace; or

b) grant leave to the aggrieved woman up to a period of three month; or

c) grant such other relief to the aggrieved woman as may be prescribed.

> The grant of leave will be in addition to the leave she would be otherwise entitled. [sec-12(2)]

> The employer shall implement the recommendation as provided U/S 12(1) and send report on it to ICC/LCC [sec-12(3)]

Inquiry Report-Section 13

Section 13 of the act is very important section of this act as it talks about the things that have to be done after the completion of inquiry; brief findings of section 13 are as follow:

1. Once the enquiry get completed under this act, the ICC/LCC shall provide its findings in the form of report to the employer or District officer as the case may be within a period of Ten Days, and such report also be made available to the concerned parties.

2. When the respective committee(s) arrives at the conclusion that allegation against respondent has not been proved, it shall recommend to employer/District officer that no action is required to be taken in the matter.

3. In case when the allegation against respondent has been proved, the ICC/LCC shall recommend to Employer/ District Officer the following recommendation

a) To take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be provided.

b) To deduct from the salary/wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or her legal heirs, as it may determine in accordance with the provision of section 15;

If employer is unable to deduct the aforesaid amount, it may direct the respondent to pay such sum to the aggrieved woman directly. If respondent fails to pay the sum as directed, the ICC/LCC may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.

4. The Employer/ District Officer shall act upon the recommendation within Sixty Days of its receipt by him.

Section 14 of the act talks about the punishment for false or malicious complaint and false evidence, it clearly says that where ICC/LCC comes to conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false or misleading document, it may recommend to Employer/DO to take action against the complainant as prescribed by the Act.

Further section 15 of the act specify the list of facts that have to be taken care of by the ICC/LCC while determining the compensation to be paid to the aggrieved woman as mentioned under Section 13(3)(ii) of the Act. Section 16 of the act prohibits the publication or making known the contents of complaint and inquiry proceedings, as per section 17 of the act, if any person entrusted with the duty or deal with the complaint inquiry or any recommendation or action to be taken under the provisions of this act, contravenes the provisions of section 16, he shall be liable for penalty as prescribed under the act.

Appeal against Recommendations

Any person aggrieved from the recommendation made as U/S 13(2) or U/S 13(3) (i &ii) or U/S 14 (2)(1) or Section 17 or non implementation of such recommendations may prefer an appeal to the court or tribunal as per the provisions as prescribed under the act.

The appeal shall be preferred with in a period of Ninety Days of the recommendations.

Duties of the Employer

The duties of employer as prescribed under the act can be summarized as below:

> Every employer will provide proper safe working environment at the workplace which also includes safety from outsiders coming into workplace.

> It shall be the duty of every employer, to affix proper display board at any conspicuous place in the workplace which display penal consequences of sexual harassment and also display order that constituting the ICC i.e. Internal Control Committee.

> To organise awareness programs/ workshops for sensitising the employees with provisions of the act.

> Employer shall provide all necessary assistance/facilities to ICC/LCC for dealing with complaint and inquiry thereof and also assist in securing attendance of respondent/witnesses before ICC/LCC.

> It shall be the duty of every employer to provide all necessary information to ICC/LCC.

> To assist aggrieved woman to file a complaint in relation to the offence, under the IPC or any other law, if she chooses to do so.

> Every employer shall cause to initiate action under the IPC or any other law for the time being in force against the proprietor or if the aggrieved woman so desires, where the proprietor is not an employee, in the workplace at which the incident of sexual harassment took place.

> To treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct.

> To monitor the timely submissions of reports by the internal complaints committee.

Duties & Power of District officer (Sec.20)

> To monitor the timely submissions of reports by the Local Complaints committee.

> To take such necessary measures for engaging non-governmental organization for creation awareness on sexual harassment and rights of women.

Other important provisions of the Act

1. The ICC/LCC shall for each calendar year prepare an annual Report and will submit the same to the Employer/ District officer.

2. The employer shall include in its report the number of cases filed, if any, and their disposal under this Act in the Annual Report of his organisation or where no such report is required to be prepared, intimate such number of cases, if any, to the district officer.(Sec-22)

3. Penal provisions for Non-Compliance of the Act

Section 26(1) says that;

Where the employer fails to—

a) Constitute an Internal Complaint Committee under sub section(1) of section 4;

b) Take action under section 13,14, and 22; and

c) Contravenes or attempts to contravene or abets contravention of other provisions of this Act or any rules made thereunder

He shall be punishable with fine which may extend to 50,000 rupees.

Sub section (2) of section 26 of the act provides stringent penalties for those employers who subsequently commits and convicted for the same offence under this act.

4. No court shall take cognizance of any offence punishable under this Act or any rules made thereunder, save on a complaint made by the aggrieved woman or any person authorized by the ICC/LCC in this behalf and No court Inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of first class shall try any offence punishable under this act.

5. Every offence under this act shall be a Non-Cognizable offence.

6. The provision of this act shall be in addition to and not in derogation of the provisions of other law for the time being in force.(Sec.28)

7. Section 29(1) of the act gives power to appropriate Government to make rules for carrying out the provisions of this Act.

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