Desai Desai Carrimjee & Mulla

In April 2013, the Sexual harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ( the Act) was passed to deal with the problem of sexual harassment against women in the work place.

The issue of sexual harassment at the work place gained special prominence with the passing of the Supreme Court of India’s landmark judgment in Vishaka and others v. State of Rajasthan[ 1997(7) SCC 323] - the“Vishaka Judgement”.

In 1992, Bhanwari Devi, a woman employed with the rural development programme of the Government of Rajasthan was brutally gang raped on account of her efforts to curb the then prevalent practice of child marriage. This incident revealed the hazards that working women were exposed to on a day to day basis and highlighted the urgency for safeguards to be implemented in this regard, Championing the cause of working women in the country, women’s rights activists and lawyers filed a public interest litigation in the Supreme court of India under the banner of Vishaka.

The Supreme Court, in the Vishaka Judgment, laid down guidelines making it mandatory for every employer to provide a mechanism to redress grievances pertaining to workplace sexual harassment and enforce the right to gender equality of working women.
As per the Supreme Court, the Guidelines laid down in the Vishaka Judgment have the effect of law mandatorily to be followed by organizations, both in the private and government sector, until such time as a legislative frame work on the subject has been drawn-up, ratified and enacted,.

The Guidelines place reliance on the Convention on Elimination of All Forms of Discrimination against Women as adopted by the General Assembly of the United Nations, in 1979 which India has both signed and ratified.

The Act came into force of the 22nd of April 2013, 16 years after the passing of the Vishaka Judgment.

The key provisions of the Act:

The Act is to apply to the whole of India and is specifically not a gender neutral legislation. Under the act an ‘aggrieved woman’ in relation to a workplace, is a woman of any age, whether employed or not, who alleges to have been subjected to any act of sexual harassment.[ Sec 2(a) of the Prevention of workplace Sexual Harassment Act]

The Act applies to both the organized and unorganized sectors in India and inter alia, applies to government bodies, Corporations or Co-operative Societies, private and public sector organizations, non-governmental organizations, Trusts, organizations carrying out commercial, vocational, educational, entertainment, industrial, financial activities, hospitals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals and a dwelling place or a house[ Sec 2(o) of the Prevention of workplace Sexual Harassment Act] and extends to any place visited by the employee arising out of or during the course of employment.

Duties of the employer under the Act –

Every employer shall –

a) provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;

b) display at any conspicuous place in the workplace, the penal consequences of sexual harassment;

c) organize workshops 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) provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an enquiry;

e) assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;

f) make available such information to the Internal Committee or the Local Committee, as the case may be;

g) provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force;

h) cause to initiate action, under the Indian Penal Code or any other law for the time being in force, 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 the service rules and initiate action for such misconduct;

j) monitor the timely submission of reports by the Internal Committee.

k) formulate and widely disseminate an internal policy or charter or resolution or declaration for prohibition, prevention and redressal of sexual harassment at the workplace intended to promote gender sensitive safe spaces and remove underlying factors that contribute towards a hostile work environment against women.

l) carry out orientation programs and seminars for the Members of the Internal Committee;

m) carry out employees awareness programs and create forum for dialogues which may involve Panchayati Raj Institutions, Gram Sabha women’s groups, mother’s committee, adolescent groups, urban local bodies and any other body as may be considered necessary;

n) conduct capacity building and skill building programs for the Members of the Internal Committee;

o) declare the names and contact details of all Members of the Internal Committee;

p) use modules developed by the State Governments to conduct workshops and awareness programs for sensitizing the employees with provisions of the Act.

Meaning of Sexual Harassment

Conduct that may be construed as sexual harassment not only violates the Act, but also could constitute offences under other statutes such as under the IPC under Sections 354 and 509 that inter alia deal with any kind of sexual harassment of women.

The Act defines ‘sexual harassment’ to include 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
(vi) non-verbal conduct of sexual nature;

Further, no woman shall be subjected to sexual harassment at any workplace which includes the following circumstances:

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.

Redressal mechanism:

The Act mandates the setting up of grievance redressal forums by every employer. An Internal Complaints Committee (ICC) shall be set up at each office or administrative unit of the workplace located at different places.

The ICC shall consist of the following members;

a. A female Presiding Officer employed at a senior level at the workplace.
b. Not less than 2 members from amongst employees, preferably, committed to the cause of women or who have had experience in social work or have legal knowledge.
c. An External Member from an NGO or association committed to the cause of women or person familiar with issues relating to sexual harassment.

Not less than half of the ICC Members shall be women; The term of the ICC Members shall not exceed 3 years; A Minimum of 3 Members of the ICC including the Presiding Officer are to be present for conducting the inquiry.

The Act also provides for the setting up of a Complaints Committee at the District Level to investigate and redress complaints of sexual harassment from the unorganized sector or from establishments where there is no ICC.

For the purposes of the Act, the ICC and LCC shall have the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908 (5 of 1908).

Manner of inquiry into a complaint –

At the time of filing the complaint, the complainant shall submit to the ICC/LCC six copies of the complaint along with supporting documents and the names and addresses of the witnesses.

On receipt of the complaint, the ICC/LCC shall send a copy of the same to the respondent within a period of seven working days. The law also makes provisions for friends, relatives, co-workers, psychologists, psychiatrists, etc. to file the compliant in situations where the aggrieved employee is unable to make the complaint on account of physical incapacity, mental incapacity or death.

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

In conducting the inquiry a minimum of three Members of the Complaints Committee including the Presiding Officer or the Chairperson as the case may be shall be present.

An aggrieved woman is allowed to request for conciliation in order to settle the matter although monetary settlement should not be made as a basis of conciliation.

Timelines under the Act:

Written complaints (6 copies) along with supporting documents and names and addresses of witnesses have to be filed within 3 months of the date of the incident. This timeline is extendable by another 3 months.

Upon receipt of the complaint, 1 copy of the complaint is to be sent to the respondent within 7 days and the respondent is required to reply to the complaint within 10 working days.

The Inquiry has to be completed within a total of 90 days from the receipt of the complaint.

The Inquiry report has to be issued within 10 days from the date of completion of inquiry.

The employer is required to act on the recommendations of the ICC/LCC within 60 days of receipt of the Inquiry report.

Appeal against the decision of the committee is allowed within 90 days from the date of recommendations.

Action during pendency of inquiry –

1. During the pendency of an inquiry, on a written request made by the aggrieved woman, the Internal Committee or the Local Committee, as the case may be, 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 3 months; or
c) grant such other relief to the aggrieved woman 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 to.

3. On the recommendation of the Internal Committee or the Local Committee, as the case may be, under Sub-Section (1), the employer shall implement the recommendations made under sub-section (1) and send the report of such implementation to the Internal Committee or the Local Committee, as the case may be.

Other relief to the complainant during pendency of inquiry

The Complaints Committee at the written request of the aggrieved woman may recommend to the employer to –

a) 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;
b) restrain the respondent in case of an educational institution from supervising any academic activity of the aggrieved woman.

Punishments under the Act against a person found guilty of sexual harassment:

i. punishment prescribed under the service rules of the organization;

ii. if the organization does not have service rules, disciplinary action including written apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service, undergoing a counselling session, or carrying out community service; and

iii. deduction of compensation payable to the aggrieved woman from the wages of the respondent.

iv. 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;

v. 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.

Determination of compensation is based on:

i. the mental trauma, pain, suffering and emotional distress caused to the aggrieved employee;

ii. the loss in career opportunity due to the incident of sexual harassment;

iii. medical expenses incurred by the victim for physical/ psychiatric treatment;

iv. the income and status of the alleged perpetrator; and

v. feasibility of such payment in lump sum or in installments.

In the event that the respondent fails to pay the aforesaid sum, ICC may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.

Frivolous Complaints

Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that during the inquiry any witness has given false evidence or produced any forged or misleading document, it may recommend to the employer of the witness or the District Officer, as the case may be, to take action in accordance with the provisions of the service rules applicable to the said witness or where no such service rules exist, in such manner as may be prescribed.

Confidentiality

Recognising the sensitivity attached to matters pertaining to sexual harassment, the Prevention of Workplace Sexual Harassment Act attaches significant importance to ensuring that the complaint and connected information are kept confidential. The statute specifically stipulates that information pertaining to workplace sexual harassment shall not be subject to the provisions of the Right to Information Act, 2005.

Frequently Asked Questions

I. When does an act amount to ‘sexual harassment’ under the Prevention of Workplace Sexual Harassment Act?

Any act against a woman which is impliedly/ explicitly sexual in nature and is unwelcome and occurs at the workplace, shall constitute sexual harassment under the statute. This would include acts such as staring, leering, obscene gestures, howling, kissing, smacking lips, showing sexually obscene/ suggestive signs objects or pictures, indecent comments, dirty jokes, commenting on a woman’s dress or body, using position of power for sexual favours, unwelcome touching, patting, brushing against the body, blocking, using force, assaulting, using unwanted innuendoes, passing sexual comments or telling sexual stories, asking about one’s sexual fantasies, interests etc., showing pornography or any other unwelcome behaviour.

It may be stated that no physical contact is necessary.

AI. Can both men and women be victims of workplace sexual harassment?

While both men and women can be victims of sexual harassment, the Prevention of Workplace Sexual Harassment Act protects only women.

III. Is it sexual harassment if the harassment is only verbal?

Verbal harassment can constitute sexual harassment. Words can be just as offensive as physical acts and contact. Sexually coloured jokes, comments and stories can be sexually harassing and can create a hostile work environment.

IV. Is the employer responsible if an employee is sexually harassed at a company-sponsored event outside of working hours?

Any form of sexual harassment at a company-sponsored event would also be within the scope of the statute.

V. When is an establishment required to constitute an ICC?

Every establishment having 10 or more employees is required to constitute an ICC.

VI. Is an ICC required to be constituted at every branch/ office?

Yes, an ICC is required to be set up at every branch/ office of the company wherein at least 10 employees are employed.

VII. Can the complaint be filed with and inquired by the HR manager of the company?

No, the complaint needs to be filed with and inquired into by the ICC.

VIII. Is there a time limit for filing a complaint of sexual harassment?

A complaint of sexual harassment needs to be filed within 3 months of the date of incident and in case of a series of incidents, within a period of 3 months from the date of the last incident. However, the ICC or the LCC may as the case may be, extend the time limit, however not exceeding 3 months, for reasons to be recorded in writing if it is satisfied that the circumstances were such that the victim was unable to file a complaint within the said period.

IX. Can a complaint of sexual harassment be conciliated between the parties?

Yes, but no monetary settlement shall be allowed.

X. Can a Complainant withdraw a complaint?

Yes, on examination by the ICC.

XI. Can a complaint of sexual harassment be conciliated between the parties?

Yes, but no monetary settlement shall be allowed.

XII. Can a Complainant withdraw a complaint?

The ICC must examine the cause of withdrawal and pass an order or findings in this regard.

XIII. How does the ICC or LCC protect the identity of witnesses?

This is not clearly stipulated under the Act. However, the findings of the ICC or LCC may be drafted in such a manner so as to ensure that the identity of witnesses is not disclosed.

XIV. Consequences of non-compliance with the Act

If an employer fails to constitute an ICC or does not comply with the requirements prescribed under the Prevention of Workplace Sexual Harassment Act, a monetary penalty of up to INR 50,000 may be imposed. A repetition of the same offence could result in the punishment being doubled and / or de-registration of the entity or revocation of any statutory business licenses. It is however unclear as to which business licenses are being referred to in this case.24 It is also pertinent to note that all offences under Prevention of Workplace Sexual Harassment Act are non-cognizable.25

http://www.thebetterindia.com/91261/sexual-harassment-work-indian/

http://www.business-standard.com/article/current-affairs/70-working-women-do-not-report-workplace-sexual-harassment-in-india-117030400227_1.html