FAQs On Sexual Harassment of Women At Workplace (Prevention, Prohibition And Redressal) Act,2013
You are aware that our Constitution has given some fundamental rights to all citizen residing in India. The Constitution of India does not discriminate citizen on the basis of gender, caste, creed, Color ,religions, etc. Every citizen of India has equal rights under Constitution. Due to our religion or customs a son in the family is preferred than a daughter. It is believed today also that a son is the torch bearer of a family. In this modern India the believe and thoughts of our people are not changed. They still prefer son our daughter and consider daughters as liability rather than equal to sons.
The daughters of this country are performing better ha sons day to days. They are showing their expertise in every filed and more than they are not entered in male dominated field also. The government has also done a lot by reserving ,encouraging ,promoting and helping development of women in our country. The women empowerment is the need of Morden India ,since they are also 50% of the population of India.
We regret to write here that till date mentality of male members of the society have not changed and they still under estimating capabilities of women and are not ready to give them equal position in their homes or organisations. A woman can handle house and offices better than a man. They are in borne management gurus , some part of India mostly in Southern Estates women are still considered as chief of family.
The women at workplace are vulnerable to various types of harassment’s such as physical contacts and advances, a demand or request for sexual favour, making sexual coloured remarks, etc. These types of unwelcome gestures cause huge embarrassments to women and should be checked and prohibited at any cost.
It is duty of the states to provide woman safer and respectable place for their working and a safer society ,where they are treated as equal and at par with their male counterparts. There should be no discrimination on the basis of sex etc., they should be provided equal opportunities in progress and development in the society and organisations. They are the backbone of India and we should understand and treat them as our partners and not a competitors.
WHEREAS sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business with includes a right to a safe environment free from sexual harassment;
AND WHEREAS the protection against sexual harassment and the right to work with dignity are universally recognised human rights by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on the 25th June, 1993 by the Government of India;
AND WHEREAS it is expedient to make provisions for giving effect to the said Convention for protection of women against sexual harassment at workplace.
BE it enacted by Parliament in the Sixty-fourth Year of the Republic of India as follows: —The Government on 22nd April ,2013 has brought the Sexual Harassment of Women at workplace( Prevention,Prohibition and Redressal ) Act,2013.
“An Act 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 or incidental thereto.”
LETS’ CONSIDER SOME DEFINITIONS;
Section 2(a) “aggrieved woman” means—
(i) in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;
(ii) in relation to dwelling place or house, a woman of any age who is employed in such a dwelling place or house.
Section 2(e) “domestic worker” means a woman who is employed to do the household work in any household for remuneration whether in cash or kind, either directly or through any agency on a temporary, permanent, part time or full time basis, but does not include any member of the family of the employer.
Section 2(f) “employee” means a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name.
Section 2(n) “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;
Section2(o) “workplace” includes—
(i) 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 or the local authority or a Government company or a corporation or a co-operative society;
(ii) 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;
(iii) hospitals or nursing homes;
(iv) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;
(v) any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey;
(vi) a dwelling place or a house.
SECTION 3 -is the charging Section of the Act,2013 and provides that ;
Section 3. Prevention of sexual harassment.—
(1) No woman shall be subjected to sexual harassment at any workplace.
(2) The following circumstances, among other circumstances, if it occurs, or is present in relation to or connected with any act or behavior of sexual harassment may amount to sexual harassment:—
(i) implied or explicit promise of preferential treatment in her employment; or
(ii) implied or explicit threat of detrimental treatment in her employment ; or
(iii) implied or explicit threat about her present or future employment status; or
(iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or
(v) humiliating treatment likely to affect her health or safety.
SECTION 4- Every employer of a workplace shall, by an order in writing, constitute a Committee to be known as “ Internal Complaints Committee”.
Please note that: ICC is required to be constituted at every office /branch/site office of an organisation having 10 or more workers.
SECTION 9- provides that any aggrieved woman may make, in writing, a complaint of sexual Harassment at workplace to the ICC, if so constituted or Local Committee.
SECTION 10 –provides that the ICC or Local Committee will try to settle the complaint through meditation and conciliation , by discussing the matter with the complainant and the respondent.
SECTION 11- powers of ICC or Local Committees; the ICC or Local Committee , as the case may be shall have the same powers as are vested in a Civil Court, under the Code of Civil Procedure,1908 ,when trying a suit in respect of the following matters, namely—
(i) Summoning and enforcing the attendance of a person and examining him on oath;
(ii) Requiring the discovery and production of documents; and
(iii) Any other matters as may be prescribed .
SECTION 12 -provides actions to be taken by ICC or Local Committee during pendency of complaint;
(i) Transfer the aggrieved woman o the respondent to any other workplace;
(ii) Grant leave to the woman up to a period of three(3) months;
(iii) Grant such other relief to the aggrieved woman as may be prescribed.
Please note That the lave granted to aggrieved woman will be in addition to leave she would be entitle under normal course of her employment
SECTION 13. INQUIRY REPORT.—(1) On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties.
SECTION 14. PUNISHMENT FOR FALSE OR MALICIOUS COMPLAINT AND FALSE EVIDENCE.—(1) Where the Internal Committee or the Local Committee, as the case may be, arrives at a 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 the aggrieved woman or any other person making the complaint has produced any forged or misleading document, it may recommend to the employer or the District Officer, as the case may be, to take action against the woman or the person who has made the complaint under sub-section (1) or sub-section (2) of section 9, as the case may be, in accordance with the provisions of the service rules applicable to her or him or where no such service rules exist, in such manner as may be prescribed.
SECTION 15. DETERMINATION OF COMPENSATION.—For the purpose of determining the sums to be paid to the aggrieved woman under clause (ii) of sub-section (3) of section 13, the Internal Committee or the Local Committee, as the case may be, shall have regard to—
(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.
SECTION 16. PROHIBITION OF PUBLICATION OR MAKING KNOWN CONTENTS OF COMPLAINT AND INQUIRY PROCEEDINGS.—Notwithstanding anything contained in the Right to Information Act, 2005 (22 of 2005), the contents of the complaint made under section 9, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner:
Provided that information may be disseminated regarding the justice secured to any vicitim of sexual harassment under this Act without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses.
SECTION 17. PENALTY FOR PUBLICATION OR MAKING KNOWN CONTENTS OF COMPLAINT AND INQUIRY PROCEEDINGS.— Where any person entrusted with the duty to handle or deal with the complaint, inquiry or any recommendations or action to be taken under the provisions of this Act, contravenes the provisions of section 16, he shall be liable for penalty in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist, in such manner as may be prescribed.
SECTION 18. APPEAL.—(1) Any person aggrieved from the recommendations made under sub-section (2) of section 13 or under clause (i) or clause (ii) of sub-section (3) of section 13 or sub-section (1) or sub- section (2) of section 14 or section 17 or non-implementation of such recommendations may prefer an appeal to the court or tribunal in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist then, without prejudice to provisions contained in any other law for the time being in force, the person aggrieved may prefer an appeal in such manner as may be prescribed.
(2) The appeal under sub-section (1) shall be preferred within a period of ninety days of the recommendations.
SECTION 26. PENALTY FOR NON-COMPLIANCE WITH PROVISIONS OF ACT.—(1) Where the employer fails to—
(a) constitute an Internal Committee under sub-section (1) of section 4;
(b) take action under sections 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 fifty thousand rupees.
(2) If any employer, after having been previously convicted of an offence punishable under this Act subsequently commits and is convicted of the same offence, he shall be liable to—
(i) twice the punishment, which might have been imposed on a first conviction, subject to the punishment being maximum provided for the same offence:
Provided that in case a higher punishment is prescribed under any other law for the time being in force, for the offence for which the accused is being prosecuted, the court shall take due cognizance of the same while awarding the punishment;
(ii) cancellation, of his licence or withdrawal, or non-renewal, or approval, or cancellation of the registration, as the case may be, by the Government or local authority required for carrying on his business or activity.
FREQUENTLY ASKED QUESTIONS;
Q. 1. Is it mandatory to constitute and ICC?
Ans: YES every employer of a workplace employing more than ten workers shall constitute by an order in writing, a Committee to be known as “ Internal Complaints Committee” ICC.
Please Note that it is no where in Act,2013 said that one or two woman should be there in 10(ten)) workers for constitution of ICC.
Q. 2. Who will be members of ICC?
Ans: ICC shall consist of the following members;
Presiding Officer;- a woman employed at senior level at workplace from amongst employees. In case a senior level woman employee is not available , the Presiding Officer shall be nominated from other offices or administrative units of the workplace. If the senior level woman employee is not available in the organisation ,then the Presiding Officer shall be nominated from other organisation of the same employer.
Employee Members not less than two;- these employee members are those employees in the organisation ,who have legal knowledge and working for welfare of women in the organisation.
External Members ( One);- from amongst NGOs or Associations Committed to cause of women or a person familiar with issue relating to Sexual Harassment.
Please Note that: one half (50%) of the total members so nominated shall be women.
Q. 3. What will be the number of members of the ICC?
Ans: According to Section 4 of Act,2013 ,ICC consisting 4(four) members should be constituted for handling sexual harassment complaints within a Workplace.
Please Note That : in case of Smt. Shobha Goswami Vs. State of UP ,2015 LLR,1038(All HC) has ruled that out of four members of ICC ,three should be women members and one should. Be from NGOs or other organisations as may be prescribed.
Q. 4. Whether lady ember should be of a senior rank in the organisation?
Ans: Yes the lady member should be of senior level employee of the company.
Please Note That : in case of Smt. Shobha Goswami Vs. State of UP ,2015 LLR,1038(All HC) has ruled that language of Section 4 of the Act,2013 requires the lady members should be f senior level.
Q. 5. Whether the senior. Member of ICC has to be senior in rank of the offender?
Ans: it is not necessary that lady member should be senior in rank to the officer against whom the allegation of sexual harassment is brought.
Q. 6. Who will be head of ICC?
Ans: According to the provisions of section 4 of the Act,2013 a senior level woman officer is to head the ICC.
Q. 7. What should be done when there is not a senior level woman officer to be head of the ICC?
Ans: if there is no senior level woman officer presiding ICC, then actions of the Committee is to be disregarded or liable to be set aside. If senior woman officer is not available. In the organisation then same will be nominated from other work units or department of the orgaination.
Q. 8. What will be the tenure of the members of the ICC?
Ans: the presiding officer and every member of ICC, shall hold office for a period of three (3) years from the date of their nomination.
Q. 9. What will be location of ICC?
Ans: the ICC should be located at all workplaces. Where the offices or administrative units of workplace are located at different places or divisional or sub-divisional level, an ICC shall be constituted at all such administrative units or offices.
Q. 10. Who will be the district officer and what he dose?
Ans: the State Government/ UTs shall notify the District Magistrate or Additional District Magistrate or the Collector or depart Collector as the District Officer to exercise powers and discharge functions under Act,2013. The District Officer shall monitor the timely submission of reports by Local Committees and take such measures as may be necessary for engaging NGOs for creating awareness on sexual harassment and rights of woman.
Q. 11. What is Local Complaints Committee and what is procedure of its constitution and its functions?
Ans: A committee known as LCC shall be constituted in every district.The District Officer shall constitute the Local Complaints Committee (LCC). The LCC will receive and redress complaints of sexual harassment from. Establishment where the ICC has not been constituted due to having less than 10 workers and any complaint against the employer.The jurisdiction of LCC shall extend to the areas of the district where it is constituted.
Q. 12. Is there any prescribed time limit for making complaint of sexual harassment with ICC or LCC?
Ans: any aggrieved woman may make in writing complaint of sexual harassment at workplace to ICC/LCC within a period of 3(three) months form the date of incident or the date of last incident. This period may be extended for a period of further three (3) months. It means a woman can file complaint in writing within a period of 6(six) months from the date of incident or last incident.
Q. 13. What is the extent of scope for conciliation and settlement of the complaint?
On receipt of complaint and before initiating enquiry, the ICC/LCC may, at the request of the aggrieved woman ,take steps to facilitate a settlement between her and the respondent through conciliation. Where such settlement has arrived at, the ICC/LCC record such. Settlement and forward the same to the employer or the District Officer to take action as specified in the recommendation.
Please note that: the recommendation for settlement arrived at should be made within a period of 10 Ans from the date of receipt of the sexual harassment complaint by ICC/LCC.
Q. 14. Is there any time limit for an inquiry?
Ans: the inquiry shall be completed within a period of 90 days from the date of receipt of complaint by ICC/LCC.
Q. 15. Is there any minimum quorum. Of ICC/LCC required ,while holding an inquiry?
Ans: for conducting an inquiry , a minimum of three members of the ICC/LCC including Presiding Officer or Chairman , as the case may be, shall be present.
Q. 16. Are advocates permitted to representing any party before the committees?
Ans: NO ,the parties shall not be allowed to bring in any legal practitioner or advocate to represent them in their case at any stage of the proceedings before ICC/LCC.
Q. 17. What steps are to be taken by ICC/LCC on completion f an inquiry?
On completion of inquiry the ICC/LCC will provide a report of findings to the employer of District Officer within a period of 10 days from the date of completion of the inquiry and such report will also be made available to the concerned parties.
OPTION1: if the ICC//LCC arrives at the conclusion that the allegation against the respondent has not been proved , it will recommend to the employer/District Officer that no action is required to be taken.
OPTION 2: I the ICC/LCC arrives at the conclusion that the allegation against the respondent has been proved, it will recommend compensation payment to the aggrieved woman and such other action as may be decided agains the respondent.
Q. 18. Whether ICC//LCC can recommend compensation payment to an aggrieved woman?
Yes: if the ICC/LCC arrives at the conclusion that the allegation against the respondent has been proved . It will recommend to the employer and the District Officer to deduct from the salary or wages of the respondent such sum as compensation to be paid to the aggrieved woman or to her legal heirs.
In case employer is unable to deduct such amount from salary of the respondent due to absent or cessation of the employment the ICC or the LCC may direct to the respondent to pay such sums to the aggrieved woman.
In case respondent fails to. Pay the sum, the ICC/LCC may forward the Order of Recovery to the sum as an arrear of land revenue to the concerned District Officer.
Q. 19. If there any prohibition for making the proceedings available to the public and what is the penalty?
The contents of the complaint, identity and address of the aggrieved woman, respondent and witness , any information relating to conciliation and inquiry proceedings, recommendation of ICC/LCC and the actions taken by the employer or the District Officer shall not be published ,communicated or made known to the public press and the media in any manner.
However ,information relating to justice secure to the victim of sexual harassment should be disseminated ,without disclosing name, identity, address of the woman aggrieved.
Q. 20. What are consequences follow for non-compliance of the provisions of the act?
The employer. Will be liable for punishment with the fine of Rs. 50,000/- if they have not constituted ICC or if employer has not taken action on the recommendations of the ICC/LCC. or if employer has failed to make disclosure in //file its Annual Report or has contravened or attempted to contravene or abets contravention of other provisions of the Act or any rules made there under.
On second contravention the employer will charged with twice the amount i.e. Rs. 1,00,000/- or which might imposed on first conviction.
The license of an employer may be cancelled and renewal may be hold in case of continuous contravention of the provisions of the Act, 2013.
Q. 21. Can court take connivance of an offences under this Act or Rules?
Ans: YES the Court will take cognizance of any offence under the Act/Rules on complaint made by the aggrieved woman or any person authorised by ICC/LCC , every offence under this Act is non—cognizable.
Q. 22. What are the main duties of an employer under the Act,2013?
The duties of an employer has been give under provisions of Section 19 of the Act,2013.
Please Note That: – the employer will have to display at conspicuous place in the workplace , the penal consequences of sexual harassment and the order. Constituting , the ICC under Section 4(1) of the Act, 2013. It should also be mentioned that sexual. Harassment should be treated as an act of misconduct under service rules of the employment and strict action will be taken for such misconduct.
Q. 23. Whether any Annual Report is required to be sent and to whom?
Ans: YES -the iCC/LCC shall in each. Calendar year prepare, in such form and at such time as may be prescribed , an Annual Report and submit the same with employer and the District Officer.
The District Officer shall forward a brief report on the Annual Reports received under Section 21(1) of the Act, 2013to the State Government .
The Annual Report shall have below mentioned details;
i) Number of complains of. Sexual harassment received during the year;
ii) Number of complaints disposed off during the year;
iii) Number of cases pending for more than 90 days;
iv) Number of workshops or awareness programs have been conducted during the year;
v) Nature of action taken by the employer/District Officer ;
vi) Such other information as may be prescribed and required .
DISCLAIMER; the article produced above is only for information of the readers. The views expressed in the article are the personal views of the author and same should not be considered as professional advice. It is advisable to consult with professional consultant before taking any action on the basis of above write up.