Prevent Sexual Harassment

UNDERSTANDING & IMPLEMENTATION OF “THE SEXUAL HARASSMENT OF WOMEN (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013” AT WORKPLACE

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is a legislative act in India that seeks to protect women from sexual harassment at their place of work. The Bill got the assent of the President on 23 April 2013. The Act came into force from 9 December 2013.

The Act aims 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.

WHO CAN FILE THE COMPLAINT

“Aggrieved Woman”

(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 a dwelling place or house, a woman of any age who is employed in such dwelling place or house;

Employee means –

A person employed at 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;

Employer means-

(i) In relation to any department, organization, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organization, undertaking, establishment, enterprise, institution, office, branch, or unit or such other officer as the appropriate Government or the local authority, as the case may be, may by an order specify in this behalf;

(ii)  In any workplace not covered under sub-clause (i), any person responsible for the management, supervision and control of the workplace.

“Sexual harassment” includes any one or more of the following unwelcome acts or behaviour (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;

“Workplace” includes-

(i) Any department, organization, 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 organization or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organization, 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 provided by the employer for undertaking such journey

(vi)  A dwelling place or a house;

CONSTITUTION OF THE COMMITTEE

(1)  Every employer of a workplace shall by an order in writing, constitute a Committee to be known as the “Internal Complaints Committee”

(2)  Internal Complaints Committee shall consist of the following members to be nominated by the employer namely-

· Presiding Officer- shall be a woman employed at a senior level at workplace from amongst the employees;

· Not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social or hane legal knowledge;

· One member from amongst non-governmental organizations or associations committed to the cause of women or person familiar with the issues relating to sexual harassment.

Provided that at least one-half of the total Members so nominated shall be women.

· The Presiding Officer and every Member of the internal Committee shall hold office for such period, not exceeding three years, from the date of their nomination as may be specified by the employer.

· The Member appointed from amongst the non- governmental organizations or associations shall be paid such fees or allowances for holding the proceedings of the Internal Committee, by the employer a may be prescribed.

PROCEDURAL ASPECT

Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident.

That the internal Committee for the reasons to be recorded in writing, extend the time limit not exceeding three months, if it is satisfied that the circumstances were such which prevented the woman from filimg a complaint within the said period.

CONCILIATION

The Internal Committee may before initiating enquiry under section 11 and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation.

Provided that no monetary settlement shall be made as basis of conciliation.

· Where a settlement has been arrived at, the Internal Committee shall record the settlement so arrived and forward the same to the employer or the District Officer to take action as specified in the recommendation.

INQUIRY INTO COMPLAINT

The Internal Committee shall, where the respondent is an employee, proceed to make inquiry into the complaint if prima facie case exist, forward the complaint to the police, within a period of seven days for registering a case under section 509 of the IPC, and any other relevant provisions of the said Code wherever applicable.

· Where both the parties are employees, the parties shall during the course of inquiry, be given an opportunity of being heard and a copy of findings shall be made available to both the parties enabling them to make representations against the findings before the Committee.

POWERS OF CIVIL COURT

For the purpose of making an inquiry, the internal Committee shall have the same powers as vested in a civil court when trying a suit in respect of the following matters, namely-

(a) Summoning and enforcing the attendance of any person and examining him on oath;

(b) Requiring the discovery and production of documents; and

(c) Any other matter which may be prescribed.

(d) The inquiry shall be completed within a period of ninety days.

ACTION DURING PENDENCY OF INQUIRY

1. During the pendency of an inquiry, on a written request made by the aggrieved woman, the Internal Committee may recommend 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; or

(c)  grant any other relief to the aggrieved as may be prescribed.

2. The leave granted to the aggrieved woman under this section shall be in addition to the leave she would be otherwise entitled.

3. On the recommendation of the Internal Committee the employer shall implement the recommendations made and send the report of such recommendation to the Internal Committee.

REPORT OF THE INQUIRY

On the completion of an inquiry under this Act, the Internal Committee shall provide a report of its finding to the employer, or the District Officer within a period of 10 days from the date of completion of the inquiry and such report be made available to the concerned parties.

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

Where the Internal Committee arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer –

(i) 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 prescribed;

(ii) To deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or 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 in accordance with the provisions if sec 15:

Provided that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman;

Provided further that in case the respondent fails to pay the sum referred to in clause (ii), the Internal Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer

The employer or the District Officer shall act upon the recommendation within 60 days of its receipt by him.

PUNISHMENT FOR MAKING FALSE/MALICIOUS COMPLAINT

1. Where the Internal Committee arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or mis-leading document, it may recommend to the employer to take action against the woman or the person.

2. Further a mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant. Also the malicious intent on part of the complainant shall be established after an inquiry under procedure prescribed herein.

3. Where the Internal Committee arrives at a conclusion that during the inquiry any witness has given false evidence, it may recommend to the employer to take action in accordance with the service rules applicable to the said witness or in a manner as may be prescribed.

DUTIES OF THE EMPLOYER

Every employer shall-

(a) Provide a safe working environment at the workplace.

(b)  Display clearly in the workplace, the penal consequences for sexual harassment and the order constituting Internal Committee.

(c) Organize workshops at regular intervals in order to aware the employees with the provisions of the Act

(d) Provide adequate facilities to the Committee for its operation.

(e) Assist in securing the attendance of the respondent & the witness before the Committee

(f) Make available to the Committee with the necessary information in accordance to the complaint made.

(g) Provide assistance to the women if she chooses to file a complaint under relevant provisions of law.

(h) Cause to initiate the action under the IPC or under any other law against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;

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

(j) Monitor the timely submission of the reports by the Committee.

ANNUAL REPORT

The Internal Committee shall in each calendar year shall prepare an annual report in such form & manner as may be prescribed, and submit the same to the employer & the District Officer. The district officer shall forward the same to the State Government.

The employer shall intimate the number of cases filed, if any and their disposal under the Act in the annual report or where no such report is to be prepared shall intimate the no. of cases to the District officer. The appropriate govt. shall thereafter maintain & monitor the implementation of the Act.

CALLING OF RECORDS

The appropriate govt. may call upon any records / information in relation to the sexual harassment and the employer shall produce the same as & when required.

PENALITY FOR NON-COMPLIANCE

Where an employer fails to constitute an Internal Complaints Committee or contravenes or attempts to contravene with any of the provisions of this Act, he  shall be punishable with a fine of up to Rs. 50,000. Further, repeated violations may lead to higher penalties and cancellation of licence or registration to conduct business.

COGNIZANCE OF THE OFFENCE

No court shall take cognizance of the offence punishable under this Act unless it has been reported to the Internal Committee. Further no court inferior to the court of MM or a judicial Magistarte of First class shall try any offence punishable under this act. Every offence under this act shall be non-cognizable.

CONCLUSION

This is a comprehensive Act to provide for appropriate steps for the protection & prevention of woman against sexual harassment. It aims to provide a safe & healthy environment to work for the women by safeguarding their rights and providing with appropriate remedies in case of any violation arising thereof. 

BY: JEEVESH MEHTA| PARTNER|

MAVEN LEGAL LLP- ADVOCATES & CONSULTANTS