SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013
What is Workplace?
Section 2(o) Workplace includes-
1. Any department, organization, office, establishment owned and controlled either by central government, state government, local authority, government company or co-operative society.
2. Any private sector organization carrying on any kind of activity including sale or supply.
3. Hospital or nursing homes.
4. Any sports institution, complex, stadium or venue whether residential or not.
5. any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey;
6. A dwelling place or a house (Wherever the number of people is ten or more).
What implies Sexual harassment?
Following circumstances, if occurs or is connected with any act or behavior of sexual harassment may amount to sexual harassment,
- implied or explicit promise of preferential treatment in her employment; or
- implied or explicit threat of detrimental treatment in her employment; or
- implied or explicit threat about her present or future employment status; or
- interference with her work or creating an intimidating or offensive or hostile work environment for her; or
- humiliating treatment likely to affect her health or safety.
WHAT COMPANIES NEED TO DO?
According to Rule-8(5)(x) of Companies (Accounts) Rules, 2014 a company (other than OPC and Small Company) shall include in its board report a statement that the company has complied with provisions relating to the constitution of Internal Committee under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
Internal Committee (IC) (Section-4)
- Every employer of a workplace shall constitute an Internal Committee for each office, branch or unit.
- It shall consist atleast 4 members (50% of them must be women).
- One shall be presiding officer who shall be a woman at a senior level from amongst the employees, if not available it shall be nominated from another office/ department/unit of the same employer.
- Atleast 2 employees committed to cause of women or who have had experience in social work or have legal knowledge.
- One member from amongst NGO or associations committed to the cause of women or a person (Expert) familiar with the issues relating to sexual harassment as may be prescribed.
- Tenure of every member of committee shall not exceed 3 years from date of nomination.
- The members appointed u/s 4(2)(c) above shall be paid such fee/ allowances as prescribed for holding proceedings of the committee by the employer.
- If presiding officer or any member of the committee contravenes provisions of section-16 or 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 he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or has so abused his position as to render his continuance in office prejudicial to the public interest, such Presiding Officer or Member, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions stated above.
Local Committee (LC)
The appropriate Government may notify a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as a District Officer to constitute a Local Committee for the district concerned.
The Committee shall receive the complaints from establishments where Internal committee has not been formed due to having less than ten workers or if the complaint is against the employer himself.
The District Officer shall designate one nodal officer in every block, taluka and tehsil in rural or tribal area and ward or municipality in the urban area, to receive complaints and forward the same to the concerned Local Committee within a period of seven days.
Composition of Local Committee:
LC shall contain 5 members:
1. Chairperson to be nominated from amongst the eminent women in the field of social work and committed to the cause of women;
2. One Member to be nominated from amongst the women working in block, taluka or tehsil or ward or municipality in the district;
3. Two Members, of whom at least one shall be a woman, to be nominated from amongst such NGO or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment, which may be prescribed:
4. At least one member should have a background in law or legal knowledge, Atleast one member shall be a woman belonging to the SC/ST/OBC
5. the concerned officer dealing with the social welfare or women and child development in the district, shall be a member ex officio.
Tenure of every member of committee shall not exceed 3 years from date of appointment by the district officer.
Section-4(5) stated above shall apply mutatis mutandis to chairperson and members of LC.
The members of LC except who is appointed under clause (b) and (d) shall be entitled to such fee/allowance by as may be prescribed for holding proceedings of LC by the district officer.
Prescribed fee- Rs.200/- per day and also the reimbursement of travel cost incurred in travelling by train in three tier AC or AC bus and auto rickshaw or taxi, or the actual amount spent by him on travel, whichever is less.
Person familiar with the issues relating to sexual harassment may include;
(i) a social worker with at least five years’ experience in the field of social work which leads to creation of societal conditions favourable towards empowerment of women and in particular in addressing workplace sexual harassment;
(ii) a person who is familiar with labour, service, civil or criminal law.
Who can make a complaint to whom and time limit by which complaint can be made?
A complaint of sexual harassment can be made by the aggrieved woman/her legal heir/person as may be prescribed (in case of physical/mental incapacity or death) in writing, to Internal committee or Local committee as the case may be within a period of 3 months from the date of incidence or in case of last incidence.
Provided that extension of three months can be granted by committee if it is satisfied that circumstances prevented her from filing complaint in that period.
If the complaint can’t be made in writing, the members of the committee shall render all reasonable assistance to her for making complaint in writing.
Rule-6 In case of physical incapacity.
(a) her relative or friend; or
(b) her co-worker; or
(c) an officer of the National Commission for Women or State Women’s Commission; or
(d) any person who has knowledge of the incident, with the written consent of the aggrieved woman;
In case of mental incapacity
(a) her relative of friend; or
(b) a special educator; or
(c) a qualified psychiatrist or psychologist; or
(d) the guardian or authority under whose care she is receiving treatment or care; or
(e) any person who has knowledge of the incident jointly with the abovementioned persons.
Resolution of the complaint
IC/LC shall take steps to resolve the complaint through conciliation before making an enquiry Provided that no monetary settlement shall be made as a basis of conciliation. Committee shall record the settlement and forward to the Employer or District officer with recommendations to take action. (No enquiry if settled through conciliation). If terms/conditions of settlement arrived has not been complied with by the respondent committee shall inquire into the matter or forward the complaint to the police as the case may be.
Inquiry into the complaint (section-11)
If Respondent is an employee-IC shall proceed to inquire according to the service rules applicable, if no such rules exist, manner as may be prescribed. If both the parties are employee opportunity of being heard shall be given to both and finding shall be made available to both for making representation.
Rule-7 Manner of inquiry into complaint.
The complainant shall submit to the Complaints Committee, six copies of the complaint along with supporting documents and the names and addresses of the witnesses. Then one shall be sent to the respondent within 7 days for filing a reply within 10 days of receipt by him along with his list of documents, and names and addresses of witnesses. Principle of natural justice shall be followed. Termination of proceedings or Ex-parte order can be passed by the committee if complainant or respondent fails to present himself/herself for 3 consecutive hearings (after giving notice of atleast 15 days).
In case of a domestic worker- LC shall forward the complaint to the police within a period of seven days for registering the case under section 509 of the Indian Penal Code. When the respondent is convicted of the offence, court may order payment of appropriate amount to the aggrieved woman according to section-15.
According to section -15 IC/LC while determining the amount of payment, shall consider the following factors-
(a) the mental trauma, pain, suffering and emotional distress caused to the aggrieved woman;
(b) the loss in the career opportunity due to the incident of sexual harassment;
(c) medical expenses incurred by the victim for physical or psychiatric treatment;
(d) the income and financial status of the respondent;
(e) feasibility of such payment in lump sum or in instalments.
The inquiry shall be completed within a period of ninety days.
During the pendency of an inquiry, IC/LC, as the case maybe, may recommend (suo moto or on the written request of the woman) to the employer to—
(a) transfer the aggrieved woman or the respondent to any other workplace; or
(b) grant leave to the aggrieved woman up to a period of three months in addition to leave she is already entitled to;
(c) restrain the respondent from reporting on the work performance of the aggrieved woman or writing her confidential report, and assign the same to another officer;
(d) restrain the respondent in case of an educational institution from supervising any academic activity of the aggrieved woman.
Employer shall implement the recommendation and send the report to IC/LC, as the case may be.
On completion of Inquiry, Inquiry report shall be sent to the employer/ District officer within 10 days of completion of inquiry and shall be made available to both the parties.
If allegation not proved- Committee shall recommend that no action required.
If allegation proved- recommend to employer/ District officer
1. To take action for sexual harassment as a misconduct in accordance with service rules or other action including a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service or undergoing a counselling session or carrying out community service.
2. To deduct, from the salary/ wages of the respondent or direct respondent to pay such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as may be determined, according to section 15, where he doesn’t pay such sum IC/LC may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.
Employer/District officer shall take action within 60 days of recommendation.
Punishment for false or malicious complaint and false evidence.
The woman or any person making false complaint or witness making false statement shall be punishable in accordance with the service rules (if no such rules exist- Other action including a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service or undergoing a counselling session or carrying out community service) Provided that the malicious intent on part of the complainant shall be established after an inquiry in accordance with the procedure prescribed, before any action is recommended by ICC/LCC.
An appeal may be by the aggrieved person u/s 13(2)(i),(ii) or 13(3)(1),(2) or 14 or 17 preferred to the court or tribunal in accordance with the provisions of the service rules or if no service rules exist any manner as may be prescribed within 90 days of recommendation by the aggrieved person.
Court/tribunal means appellate authority notified under of section 2 of the Industrial Employment (Standing Orders) Act,1946.
Duties of the employer
Every employer shall—
(a) provide a safe working environment at the workplace;
(b) display at any conspicuous place, the penal consequences of sexual harassments and the order constituting, the Internal Committee;
(c) provide necessary facilities to the IC/LC, for dealing with the complaint and conducting an inquiry;
(d) provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force;
(e)treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
(f) monitor the timely submission of reports by the Internal Committee.
Section 21. Committee to submit annual report.
The Internal Committee or the Local Committee, as the case may be, shall in each calendar year prepare, in such form and at such time as may be prescribed, an annual report and submit the same to the employer and the District Officer, which shall be signed by the presiding officer of the committee. The District Officer shall forward a brief report on the annual reports received to the State Government.
Rule 14- The report shall include following details:
(a) number of complaints of sexual harassment received in the year;
(b) number of complaints disposed off during the year;
(c) number of cases pending for more than ninety days;
(d) number of workshops or awareness programme against sexual harassment carried out;
(e) nature of action taken by the employer or District Officer.
Section 25. Power to call for information and inspection of records.
(1) The appropriate government may,
(a) call upon any employer or District Officer to furnish in writing such information relating to sexual harassment as it may require;
(b) authorize any officer to make inspection of the records and workplace in relation to sexual harassment, who shall submit a report of such inspection to it within such period as may be specified in the order.
(2) Every employer and District Officer shall produce on demand before the officer making the inspection all information, records and other documents in his custody having a bearing on the subject matter of such inspection.
Section-26 Penalty on employer for non- compliance
If employer fails to constitute ICC or to take action under the Act or contravenes provisions of the Act shall be punishable with fine which may extend to fifty thousand rupees. If repeats shall be liable to double punishment (imposed on 1st conviction) the court shall take due cognizance of the while awarding the punishment if higher punishment is prescribed any law for the time being in force. License or registration may be cancelled by the government required for carrying on business.
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