Sexual Harassment of Women At Workplace (Prevention, Prohibition & Redressal) Act, 2013

Sexual  Harassment results in violation of fundamental rights of a woman to equality under article 14 and 15 of the Constitution of India and her right to live with dignity under article 21 of constriction and right to practice any profession or to carry out any trade or business with includes a right to safe environment free from sexual harassment.

In 2013, Government of India passed, Sexual Harassment Of Women At Workplace (Prevention, Prohibition & Redressal) Act, 2013 which traces its origin from Vishaka Judgment of Supreme Court delivered in year 1997, which defined the term of Sexual Harassment and also laid down guidelines for working women irrespective of their employment in public sector or private sector. After the horrible tragedy of 16^th December, 2012 also known as Nirbhaya tragedy, which escalated the public outcry for bringing changes in the Criminal law as well as enacting the Sexual Harassment Act, 2013 both the changes are gender specific in nature. In fact, it was necessary because there was no consolidated law. Vishakha judgement merely gave guidelines. No legal obligation was created by employers but by way of this act a legal obligation was enforced to set up internal committee and follow the guidelines in their organisations otherwise; that would lead them to penalty of Rs.50,000/- and in case of subsequent offence twice the punishment as well as cancellation of the licence or registration by the Government or local authority required for carrying on the business or activity.

Sexual Harassment includes anyone or more of the following unwelcome acts or behaviour (whether directly or by implication):

1. Physical contact and advances ; or

2. A demand or request for sexual favours ; or

3. Making sexually coloured remarks ; or

4. Showing pornography ; or

5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

The following circumstances, among other circumstances, if it occurs or in present in relation to or connected with any act or behaviour 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 or 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 of offensive or hostile work environment for her ; or

(v) Humiliating treatment likely to affect her work or safety.

Form of Sexual Harassment :

Verbal – Unwelcome Compliments of Sexual Nature, offensive jokes of sexual nature

Non-Verbal- Displaying sexually suggestive pictures, calendars or posters, staring, leering, lewd gesture.

Physical – Sexual advances such as touching, patting, pinching, impeding or blocking, movement or physical interference with normal work or movement

Quid pro Quo – “This for That”

Direct or indirect promise of preferential treatment in employment

Implied or expressed threat about her present, or future employment status.

Hostile work environment

Creating a hostile, intimating, or an offensive work environment Humiliating treatment likely to affect her healthy or safety

Constitution of Internal Complaint Committee and Local Complaint Committee :

Under Section 4 of the Act at all workplaces with 10 or more employees, the employer must form an Internal Complaints Committee  (ICC). This is an obligation that must be adhered to by public and private organizations.

The internal committee shall consist of the following members to be nominated by the employer of a workplace shall, by an order in writing, constitute a committee to be known as Internal Complaint Committee.

Provided that where the offices or administrative units of the workplaces are located at different places or divisional or sub-divisional level.

2.The Internal Committee shall be constituted at all administrative units or offices.

Presiding officer :

This post of Presiding Officer must be held by a senior-level female employee at the workplace as she will also preside as the Chairperson of the Internal Complaints Committee.

In case of unavailability of a senior female employee, then the Act mandates that:

• A senior female employee can be nominated from other offices or administrative units of a workplace.
• If a senior-level woman employee is not available at the other offices or administrative units of the workplace too, then the Presiding Officer can be nominated from any other workplace of the same employer.
• If the above is not possible then the Presiding Officer can be nominated from any other workplace.

Employee Members

The internal complaints committee policy further specifies that the Internal Complaints Committee must also have two or more members from among its employees. The prerequisite for the selection of employees as members demands some legal knowledge or experience in the social sector or committed to the women’s cause. These are desirable but not mandatory as it may not be always easy to find such employees.

External Member

The Act also specifies that the Sexual Harassment Committee must include an external member from a non-governmental organization or association that is committed to the cause of women. The person thus nominated must be familiar with issues relating to sexual harassment.

Tenure of the Members of the Committee

Section 4(3) of the Act specifies the tenure of the members of the Internal Complaints Committee in the workplace. It specifies that the members along with the presiding officer, shall not occupy the office for a period of more than three years from the date of nomination.

Constitution of Local Complaints Committee under Section 6:

Every District officer shall constitute in the district concerned, a committee to be known as the “Local Complaints Committee” to receive complaints of sexual harassment from establishments where the Internal Complaint Committee has not been constituted due to having less than 10 workers or if the complaint is against the employer himself.

DUTIES OF EMPLOYER

Every employer must believe that the sexual harassment at workplace affects the well being and economical livelihood of the woman employee, while also affecting the moral productivity and integrity at workplace.

Section 19 defines duties of the employer as under :

a. To provide safe working environment at the workplace which shall include safety from the person coming into contact at the workplace.

b. To display at any conspicuous place in the workplace, the penal consequences of sexual harassment; and the order constituting the Internal Committee under Sub-section (1) of section 4;

c. To organise workshop and awareness programmes at regular intervals for sensitizing the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed.

d. To provide necessary facilities to the Internal Committee or the Local Committee, as the case may be; for dealing with the complaint and conducting an inquiry.

To assist in securing the attendance  of the respondent and witness before the Internal committee or the Local Committee, as the case may be;

e. To make available such information to the Internal committee or Local committee as the case may be, as it may require having regards to the complaint made under sub section (1) of section 9.

f. To provide assistance to the woman if she chooses to file a compliant in relation to the offence under the Indian Penal Code or any other law for the time being in force.

g. Where sexual harassment takes place as a result of an act or omission by any third party or outsider, the employer and the person- in-charge must take all necessary and reasonable step to assist the affected person in terms of support and preventive action.

h. Cause to initiate action, under the Indian Penal Code (45 of 1860) or any other law for the time being in force, against the perpetrator is not an employee, in the workplace at which incident of sexual harassment took place.

i. Treat sexual harassment as a misconduct under the service rules and initiate action against such misconduct.

j. Monitor the submission of timely submission of the reports by the Internal Committee.

COMPLAINT UNDER SEXUAL HARASSMENT

The Act of 2013 also provides for the manner in which compliant should be made and how an aggrieved woman can submit the compliant to Internal Committee or Local Committee within period of 3 months from the date of incident or series of incident, it can be further extend to  3 months, if reasonable ground are found. If it is not possible to write down the Complaint, than the member of Internal or local committee will render support to the Woman.

The aggrieved woman if due to mental or physical incapacity unable to file the complaint than the act allows following persons to file complaint on her behalf :

a. Her relative or friend or

b. Her co-worker or

c. Special educator or

d. a qualified psychiatrist or psychologist or

e. guardian or authority under whose care she is receiving treatment or care or

f. an officer for national commission for women or state women commission or

g. any person who has knowledge of the incident, with written consent of the aggrieved woman or

h. any person who has knowledge of the incident, jointly with her relative or a friend or special educator or a qualified psychiatrist or psychologist or guardian or authority under whose treatment she is receiving treatment or care.

MANNER OF ENQUIRY INTO COMPLAINT :

1. At the time of filing complaint, complainant shall submit to complaints committee, six copies of the complaint along with the supporting documents and the names and addresses of witnesses.

2. On receipt of the Complaint, the Complaints Committee  shall send one copy of received from the aggrieved woman   to the respondent within a period of seven working days.

3. The respondent shall file his reply to the complaints along with his list of documents, and names and addresses of witnesses, within period not exceeding ten working days from the date of receipt of the documents. .

4. The Complaints committee shall make inquiry into the complaint in accordance with the principles of natural justice.

5. The Complaints committee shall have right to terminate the enquiry proceedings or to give an ex-parte decision on the complaint, if the complainant or respondent fails, within sufficient cause to present herself and himself for three consecutive hearings convened by the Chairperson or president officer as the case may be, provided that such termination or ex-parte order may not be passed without giving a notice in writing, fifteen days in advance, to the party concerned.

6. The Parties shall not be allowed to bring any legal practitioner to represent them in their case at any stage of their proceedings before the complaints committee.

7. In conducting the enquiry, a minimum of three members of the Complaint committee including the president officer or the chairperson, as the case may be shall be present.

8. Action During pendency of inquiry  As an interim measure:

a. The transfer of the aggrieved woman or the respondent to another section or Department as deemed fit by the committee.

b. grant leave to the aggrieved woman upto the period of three months or

c. restrain the respondent from exercising any administrative authority or supervision or academic evaluation of the aggrieved woman.

d. Grant such other relief to the aggrieved woman as the case may require.

Inquiry Report :

1. On the completion of the inquiry under the act, the internal committee or local committee as the case may be shall provide a report of its findings to the employer, or the case may be, District officer within a period of 10 days from the date of completion of inquiry and such report will be made available to the concerned parties.

2. Where Internal committee or local committee arrives at the conclusion that the allegation against respondent has not been proved, it shall recommend to the employer and the District officer that no action is required be taken in that matter.

3. Where the Internal Committee or Complaint Committee, as the case may be arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer :

a. To take action for Sexual Harassment as a misconduct in accordance with the provisions of Service rules applicable to the respondent or where no such service rules has been made, in such manner as may be prescribed.

b. To deduct notwithstanding anything in the service rules applicable to the respondent, from the salary or the wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as it may determine, as in accordance with the provision of section 15.

4. The employer or District officer shall act upon the recommendation within sixty days of its receipt by him.

Penalty for non-Compliance with Provision of Act :-

1. An employer shall be punishable with the fine which may extend to INR 50,000 for-

Failure to constitute an Internal Complaints Committee under sub section (1) of Section 4 of the Act

Failure to act upon recommendations of the Complaints Committee Section 13 and Section 14 of the Act

Failure to file an annual report with the District Officer where required as per Section 22 of the Act

Contravenes or attempts to contravene or abet contravention of the other provisions of this act or any rule made thereunder,

2. Repeated breach of the Act can lead to cancellation of business license

Where employers repeat a breach under the Act, they shall be subject to-

Twice the punishment or higher punishment if prescribed under any other law for the same offense

Cancellation/Withdrawal/Non-renewal of registration/license , as the case may be, by the Government or Local Authority required for carrying on his business or activity.

Frequently referred Judgements :

1. The landmark judgement Vishaka V. State of Rajasthan is the basis of enactment of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

2. Apparel Export Promotional Council A.K Chopra

Confidentiality of the Proceeding under the Act

To maintain confidentiality of proceeding and to protect identity of the complainant, Section 16  of the Act prohibits publication or making known contents of the complaint and inquiry proceedings whereas Section 17 gives penalty for publication or making known contents of the Complaint and inquiry proceedings.

Conclusion :

Sexual Harassment is an anti-social practice, which  is not confined to any cast, religion, class, profession or level of status in the society. It can happen with the top executive, senior executive, executive, professor, teacher, research scholars, student,  supervisors, clients and factory workers as well as with domestic servant. Sexual Harassment may be by use of power, force, coercion, fraud, or by undue influence. Enactment of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,2013 is a big relief for working women and  right step taken  towards gender equality and protection of woman’s right to live with dignity  and right to practice any profession or to carry out any trade or business with includes a right to safe environment free from sexual harassment.