Briefing the sexual harassment of women at workplace Act, 2013

OBJECT AND PURPOSE

This act was enacted to provide protection against sexual harassment to women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.

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.

The protection against sexual harassment and the right to work with dignity are universally recognized 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. To giving effect to the said Convention for protection of women against sexual harassment at workplace, this act was enacted.

IMPORTANT DEFINTIONS

•  “aggrieved woman” means—
•  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;
•  in relation to dwelling place or house, a woman of any age who is employed in such a dwelling place or house;

•  “appropriate Government”
•  in relation to a workplace which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the Central Government or the Union territory administration, the appropriate government will be Central Government;
• If it is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the state government, appropriate government will be state government.  And also if any workplace is not covered under above categories, appropriate government will be state government.

• “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;

• “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;

•   “employer” means—

• in relation to any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organisation, 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;
• in any workplace not covered under sub-clause (i), any person responsible for the management, supervision and control of the workplace.

 “management” includes the person or board or committee responsible for formulation and administration of polices for such organisation;

• in relation to workplace covered under sub-clauses (i) and (ii), the person discharging contractual obligations with respect to his or her employees;

• in relation to a dwelling place or house, a person or a household who employs or benefits from the employment of domestic worker, irrespective of the number, time period or type of such worker employed, or the nature of the employment or activities performed by the domestic worker;

• “sexual harassment” includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely: —
• physical contact and advances; or
• a demand or request for sexual favours; or
• making sexually coloured remarks; or
• showing pornography; or
• any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

•  “workplace” includes—
• 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;
• 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;
•  hospitals or nursing homes;
•  any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;
• any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey;
•  a dwelling place or a house;

•  “unorganised sector” in relation to a workplace means an enterprise owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever, and where the enterprise employs workers, the number of such workers is less than ten.

 PREVENTION OF SEXUAL HARASSMENT

• No woman shall be subjected to sexual harassment at any workplace.
• 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: —
• 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.

CONSTITUTION OF INTERNAL COMPLAINTS COMMITTEE

CONSTITUTION

Every employer of a workplace shall constitute an “Internal Complaints Committee”. And if workplace is located at different places or divisional or sub-divisional levels, the internal committee shall be constituted of all administrative units or offices.

The Internal Committee shall consist –

1.  a Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees. And if such woman is not available at senior level, the Presiding Officer shall be nominated from other offices or administrative units of the workplace. And if woman form units is not available, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organisation;
2.  not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge;
3. one member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. And, at least one-half of the total Members so nominated shall be women.

These all members of the committee will be nominated by employer of workplace.

The members from governmental organisations or associations shall be paid fees or allowances for holding the proceedings of the Internal Committee, by the employer.

CONSTITUTION OF LOCAL COMPLAINTS COMMITTEE

The appropriate Government may notify a

• District Magistrate or Additional District Magistrate or
• the Collector or Deputy Collector

as a District Officer for every District to exercise powers or discharge functions under this Act.  And Every District Officer shall constitute a Local Committee in the district to receive complaints of sexual harassment from establishments where

• the Internal Committee has not been constituted 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.

The Local Committee shall consist of the following members to be nominated by the District Officer, namely: —

•  a Chairperson to be nominated from amongst the eminent women in the field of social work and committed to the cause of women;
• one Member from amongst the women working in block, taluka or tehsil or ward or municipality in the district;
• two Members, of whom at least one shall be a woman from amongst such non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment, which may be prescribed.

At least one of the nominees should, preferably, have a background in law or legal knowledge. And, at least one of the nominees shall be a woman belonging to the Scheduled Castes or the Scheduled Tribes or the Other Backward Classes or minority community.

•  the concerned officer dealing with the social welfare or women and child development in the district, shall be a member ex officio.

The Chairperson and every Member of the Local Committee shall hold office for such period, not exceeding three years, from the date of their appointment.

PROCEDURE FOR COMPLAINT

• Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, 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.
• If such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing.
• the Internal Committee or, as the case may be, the Local Committee may, 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 filing a complaint within the said period.
• Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir may make a complaint under this section.

• CONCILIATION- The Internal Committee or, as the case may be, the Local Committee, may, before initiating an inquiry and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation. Where settlement has been arrived, the Internal Committee or the Local Committee, as the case may be, 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. The Internal Committee or the Local Committee, as the case may be, shall provide the copies of the settlement to the aggrieved woman and the respondent. If a settlement is arrived, no further inquiry shall be conducted by the Internal Committee or the Local Committee, as the case may be.

INQUIRY INTO COMPLAINT

• After receiving the complaint, the Internal Committee or the Local Committee, as the case may be, shall, where the respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed; or

• In case of a domestic worker, the Local Committee shall, if prima facie case exist, forward the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code and any other relevant provisions of the said Code where applicable.

• 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—

• transfer the aggrieved woman or the respondent to any other workplace; or
• grant leave to the aggrieved woman up to a period of three months; or
• grant such other relief to the aggrieved woman a may be prescribed.

• On the recommendation of the Internal Committee or the Local Committee, as the case may be, the employer shall implement the recommendations and send the report of such implementation to the Internal Committee or the Local Committee, as the case may be.

• 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.

• Where the Internal Committee or the Local Committee, as the case may be, 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 or the Local 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 or the District Officer, as the case may be—

• 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;
• to deduct, 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, 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: in case the respondent fails to pay the sum, the Internal Committee or as, the case may be, the Local 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 sixty days of its receipt by him.

PUNISHMENT FOR FALSE OR MALICIOUS COMPLAINT AND FALSE EVIDENCE

• 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, 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.

DETERMINATION OF COMPENSATION

For the purpose of determining the sums to be paid to the aggrieved woman, the Internal Committee or the Local Committee, as the case may be, shall have regard to—

• the mental trauma, pain, suffering and emotional distress caused to the aggrieved woman;
  • the loss in the career opportunity due to the incident of sexual harassment;
  • medical expenses incurred by the victim for physical or psychiatric treatment;
  • the income and financial status of the respondent;
  • feasibility of such payment in lump sum or in instalments.

APPEAL

• Any person aggrieved from the recommendations or non-implementation of such recommendations may prefer an appeal to the court or tribunal within a period of ninety days, 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.

DUTIES OF EMPLOYER

Every employer shall—

• provide a safe working environment at the workplace with shall include safety from the persons coming into contact at the workplace;
• display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee;
• organise workshops and awareness programmes at regular intervals for sensitising 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;
• 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;
• assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;
• make available such information to the Internal Committee or the Local Committee, as the case be, as it may require having regard to the complaint
• 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;
• 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;
• treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
• monitor the timely submission of reports by the Internal Committee.

DUTIES AND POWERS OF DISTRICT OFFICER

The District Officer shall, —

•  monitor the timely submission of report furnished by the Local Committee;
• take such measures as may be necessary for engaging non-governmental organisations for creation of awareness on sexual harassment and the rights of the women.

This article is written by Advocate A.H. Gangohi.