Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013
There is no gainsaying that each incident of sexual
harassment at the place of work, results in violation of the fundamental right
to gender equality and the right to life and liberty -- the two most precious
fundamental rights guaranteed by the Constitution of India. As early as in
1993, at the ILO Seminar held at Manila, it was recognized that sexual
harassment of women at the workplace was a form of "gender discrimination
against women". In our opinion, the contents of the fundamental rights
guaranteed in our Constitution are of sufficient amplitude to encompass all
facets of gender equality, including prevention of sexual harassment and abuse
and the courts are under a constitutional obligation to protect and preserve
those fundamental rights. That sexual harassment of a female at the place of
work is incompatible with the dignity and honour of a female and needs to be
eliminated and that there can be no compromise with such violations, admits of
no debate. The message of international instruments such as the Convention on
the Elimination of All Forms of Discrimination Against Women, 1979
("CEDAW") and the Beijing Declaration which directs all State parties
to take appropriate measures to prevent discrimination of all forms against
women besides taking steps to protect the honour and dignity of women is loud
and clear. The International Covenant on Economic, Social and Cultural Rights
contains several provisions particularly important for women. Article 7
recognises her right to fair conditions of work and reflects that women shall
not be subjected to sexual harassment at the place of work which may vitiate
the working environment. These international instruments cast an obligation on
the Indian State to gender-sensitise its laws and the courts are under an
obligation to see that the message of the international instruments is not
allowed to be drowned. This Court has in numerous cases emphasised that while
discussing constitutional requirements, court and counsel must never forget the
core principle embodied in the international conventions and instruments and as
far as possible, give effect to the principles contained in those international
instruments. The courts are under an obligation to give due regard to
international conventions and norms for construing domestic laws, more so, when
there is no inconsistency between them and there is a void in domestic law.
(See with advantage -- Prem Shankar Shukla v. Delhi Admn. [(1980) 3 SCC 526 :
1980 SCC (Cri) 815
Prevention of sexual harassment.
1. No woman shall be subjected to sexual harassment
at any workplace.
2. The following circumstances, among other
circumstances, if it occurs or is persent 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 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.
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Complaint of sexual harassment
1. Any aggrieved woman may make, in writing, a
complaint of sexual harassment at work place 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:
Provided that where 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:
Provided further that 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.
2. 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 or such other person as may be prescribed may make a
complaint under this section.
Constitution of Internal Complaints Committee.
1. Every employer of a workplace shall, by an order
in writing, constitute a Committee to be known as the "Internal Complaints
Committee":
Provided that where the offices or
administrative units of the workplace are located at different places or divisional
or sub-divisional level, the Internal Committee shall be constituted at all
administrative units or offices.
2. The Internal Committee shall consist of the
following members to be nominated by the employer, namely:—
a. a Presiding Officer who shall be a woman
employed at a senior level at workplace from amongst the employees:
Provided that in case a senior level woman
employee is not available, the Presiding Officer shall be nominated from other
offices or administrative units of the workplace referred to in sub-section
(l):
Provided further that in case the other offices
or administrative units of the workplace do not have a senior level woman
employee, the Presiding Officer shall be nominated from any other workplace of
the same employer or other department or organisation;
b. 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;
c. 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:
Provided
that at least one-half of the total Members so nominated shall be women.
3. 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.
4. The Member appointed from amongst the
non-governmental organisations or associations shall be paid such fees or
allowances for holding the proceedings of the Internal Committee, by the
employer, as may be prescribed.
5. Where the Presiding Officer or any Member of the
Internal Committee,- -
a. contravenes the provisions of section 16; or
b. has been convicted for an offence or an inquiry
into an offence under any law for the time being in force is pending against
him; or
c. he has been found guilty in any disciplinary
proceedings or a disciplinary proceeding is pending against him; or
d. has so abused his position as to render his
continuance in office prejudicial to the public interest, such Presiding
Officer or Member, as the case may be, shall be removed from the Committee and
the vacancy so created or any casual vacancy shall be filled by fresh
nomination in accordance with the provisions of this section.
11.
Inquiry Into complaint.
1. Subject to the provisions of section 10, 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:
Provided that where the aggrieved woman informs
the Internal Committee or the Local Committee, as the case may be, that any
term or condition of the settlement arrived at under sub-section (2) of section
10 has not been complied with by the respondent, the Internal Committee or the
Local Committee shall proceed to make an inquiry into the complaint or, as the
case may be, forward the complaint to the police:
Provided further that 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 the findings shall be made available
to both the parties enabling them to make representation against the findings
before the Committee.
2. Notwithstanding anything contained in section
509 of the Indian Penal Code, the court may, when the respondent is convicted
of the offence, order payment of such sums as it may consider appropriate, to
the aggrieved woman by the respondent, having regard to the provisions of
section 15.
3. For the purpose of making an inquiry under
sub-section (I), the Internal Committee. or the Local Committee, as the case
may be, shall have the same powers as are vested in a civil court under the
Code of Civil Procedure, 1908 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.
4. The inquiry under sub-section (I) 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 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 three 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.
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.
Inquiry Report.
1. 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 often days from the date of completion of the
inquiry and such report be made available to the concerned parties.
2. 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.
3. 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—
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 of section 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 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.
4. 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
Punishment for false or malicious
complaint and false evidence.
1. 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 under sub-section (I) or sub-section (2) of section 9,
as the case may be, 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:
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 inquiry in
accordance with the procedure prescribed, before any action IS recommended.
2. 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.
