THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013

Background An Act aimed 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. Sexual Harassment results in violation of the fundamental rights of a woman to equality under Article 14 and 15 of the Constitution of India and her right to life and live with dignity under Article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment.

Visakha & Others Vs State of Rajasthan & ors. – Supreme Court 1997 The judgement of the Supreme Court by a bench of 3 judges headed by Chief Justice of India, J.S. Verma, was delivered in August, 1997 which became the basis for the promulgation of this Act. The Supreme Court prescribed in its decision as to how Women at Workplace needs to be treated and what would be construed as Sexual Harassment. The societal aberration, assisting in finding suitable methods for realization of the true concept of Gender Equality and Life & Liberty i.e. to prevent sexual harassment of working women in all work places through judicial process under Article 19 (1) g was the basis for this case.

Visakha & Others Vs State of Rajasthan & ors Visakha & Others Vs State of Rajasthan & ors. – Supreme Court 1997 (Contd) The judgement had covered every aspect pertaining to Sexual Harassment at Workplace – Like definition of Sexual Harassment, duty of employer, preventive steps, complaint mechanism, Constitution of Complaint Committee, organizing awareness programme and third party harassment. Each incident of Sexual Harassment at the workplace result in violation of fundamental right of Gender equity and the Right to life & liberty. Visakha judgement under Article 141 of Indian Constitution is for all purpose a law until suitable legislation is enacted on the subject.

Apparel Export Promotion Council v/s. A. K Apparel Export Promotion Council v/s. A.K. Chopra (AIR – 1999 – SC – 625) Molestation – “Actual Molestation” or “Tried to Molest” Repentance or unqualified apology does not reduce seriousness of the charges. Sympathy uncalled for and mercy misplaced. No justification on the part of High Court to interfere with the punishment imposed by the departmental authority.

Important Definitions Aggrieved woman : 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 a dwelling place or house, a women of any age who is employed in such dwelling place or house. Domestic Worker: 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: 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, contract worker, probationer, trainee, apprentice or called by any other such name.

Important Definitions (Continued) Employer: In Relation to Government : Head of the Department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or authority may by an order specify in this behalf. Any other workplace: Any person responsible for the management, supervision and control of the workplace. In relation to dwelling place or house a person 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.

Important Definitions (Continued) Sexual Harassment : includes such unwelcome sexually determined behaviour (whether directly or by implication) as – 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 : Amongst other parts of the definition, this includes any place be it Public or Private visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey.

Prevention of Sexual Harassment – Section 3 No woman shall be subjected to sexual harassment at any work place. Following behaviour 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 conduct of any person which interferes with her work or creates 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 – Section 4 Separate Internal Complaints Committee in all offices, administrative units located at different places at divisional/sub- divisional level : A Presiding Officer – who shall be a woman employed at a senior level at workplace from amongst the employees. Committee of 4 members to be nominated by the Management. Not less than two members from amongst employees preferably committed to cause of women or who have experience in social work or have legal knowledge. One member from NGO or association committed to the cause of women or a 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 said Committee shall hold office for a period not exceeding 3 years. The member appointed from NGO or other association shall be paid such fees or allowances for holding the proceedings of the Internal Committee, by the employer as may be prescribed.

Constitution of Local Complaints Committee – Section 5 , 6 & 7 The Appointment of District officer at District level for discharging functions under this Act – like DM, ADM, or SDM Formation of local complaints committee by district officer at district level. 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 Complaints Committee within a period of seven days. The Committee will consist of Four Members - One Chairperson (an eminent Women social worker, one women from the block, tehsil or ward etc. & two members of whom atleast one women to be nominated from NGO.

Procedure for Redressal of Complaint – Sec.8 Complaint in writing to be filed within 3 months. Complaint can be filed by the aggrieved woman or by her legal heir.

Settlement of complaints Three stages resolution of complaints Conciliation (Section 10) – Settlement of complaint through the process of conciliation but on the request of aggrieved women The Committees may at the request of the aggrieved women take steps to settle the matter between her and the respondent through conciliation. Monetary settlement shall not be made the basis for such conciliation. If the settlement has been arrived a copy of it be given to both the parties with a copy to District Officer. Where settlement has been arrived at, no further inquiry shall be conducted by the concerned Committee.

Inquiry into Complaint – Section 11 The Internal or Local Committee, may proceed with the inquiry into the complaint in accordance with the service rules or in such as manner as may be prescribed. If prima facie case exist, forward the complaint to the police, within seven days for registering the case under Section 509 of the IPC. The internal Committee shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 for : summoning and enforcing the attendance of any person and examining him on oath: requiring the discovery and production of documents; and any other matter which may be prescribed. The inquiry to be completed within a period of 90 Days

Action during pendency of inquiry – Section 12 During the pendency of an inquiry, on a written request made by the aggrieved woman, the committee may recommend : Transfer the aggrieved woman or the respondent to any other workplace ; or Grant leave to the aggrieved woman; or Grant such other relief to the aggrieved women as may be prescribed. The leave granted to aggrieved woman shall be in addition to the leave she would otherwise be entitled.

Enquiry Report – Section 13 The inquiry Report on completion shall be submitted to the employer or District Officer within 10 days. Furnishing copies of inquiry repot to concerned parties. If the allegations are not proved, no action would be taken against the respondent. To take action as a misconduct as per service rules or standing orders of the organisation to deduct salary or wages as per rules of the organisation.

Enquiry Report (Contd…) Provided, that in case an employer is unable to make 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 by the Committee, it may forward the order for recovery of the sum as an arrears 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.

False or Malicious Complaint - Section 14 Where the Committee arrives at a conclusion that the allegation against the respondent is false or malicious or the woman has produced any forged or misleading document it may recommend to the employer or to the District Officer as the case may be, to take action against the woman or the person who has made the complaint under section 9 in accordance with the service rules or such other action as it may deem fit. Provided that a mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant under this section. Provided further that the malicious intent on part of the complainant shall be established after an enquiry in accordance with the procedure prescribed, before any action is recommended.

Determination of Compensation – Section 15 The compensation to be paid to the aggrieved woman shall be determined by the committee keeping in view the following : 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 installments

Prohibition of Publication – Section 16 Notwithstanding anything contained in the RTI Act, 2005 the contents of the Complaint, Identity and address of the aggrieved woman, respondent and the witness or any other information relating to conciliation and inquiry proceedings, recommendations of the Committee and action taken by employer or district officer shall not be published, communicated or made known to the public, press and media in any manner. Provision of Appeal – (Sec. 18) Prefer an appeal to court within 90 days.

Duties of Employer – Section 19 Every Employer shall Provide a safe working environment at the workplace which 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 harassment and the order constituting, the internal committee. Organise workshops and training programmes at regular intervals for sensitizing the employees regarding the provisions of the Act. provide necessary facility to the Internal Committee or the Local Committee, as the case may be for dealing with the complaint and conducting inquiry. assist in securing the attendance of respondent and witnesses before the committee. make available such information to the committee.

Duties of Employer (Contd.) provide assistance to the women if she 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. initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator after the conclusion of the inquiry, or without waiting for the inquiry 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.

Annual Report – Section 21 & 22 The Internal or Local Committee shall in each calendar year prepare in such form and at such time as may be prescribed an annual report and submit the same to the employer and the District Officer. The District Officer shall forward the brief report on the annual reports received under sub-section (1) to the State Government. The employer shall include in its report the number of cases filed, if any, and their disposal under this Act in the Annual report of his organisation or where no such report is required to be prepared, intimate number of such cases to the District Officer.

Penalty for non-compliance – Section 26 Where an employer fails to : constitute an internal committee take action against the respondent contravenes or attempts to contravene or abets contravention of other provisions of this Act or any rules made thereunder shall be punishable with fine which may extent to 1. Fifty thousand rupees. In case of second or continuing offence, 2. Twice the punishment which might have been imposed on a first conviction, subject to the punishment being maximum provided for the same offence. Cancellation of his license or withdrawal or non renewal or approval or cancellation of registration by Govt. or local authority required for carrying on his business or activity

COGNIZANCE OF OFFENCE BY COURTS – Section 27 No Court shall take cognizance of any offence punishable under this Act, unless a complaint is made by the aggrieved women or any person authorised by the Internal Committee or Local Committee in this behalf. No Court inferior to that of Metropolitan Magistrate or Judicial Magistrate of first class shall try any offence punishable under this Act. Every offence under this Act shall be non – cognizable.

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