Sexual Harassment of Women at Workplace(Prevention,Prohibition and Redressal ), Act, 2013 | Labour and Industrial Law - CLAT PG PDF Download

Background

• Society can no longer be silent when women face sexual harassment and gender-based discrimination at work.
• Earning a living with dignity and a harassment-free environment is a basic human right recognized by the Indian Constitution.
• To address sexual harassment at the workplace, India enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, inspired by the Supreme Court judgment in Vishaka vs. State of Rajasthan.

Legislative Evolution

• Historically, India lacked specific legislation to protect women from sexual harassment at the workplace.
• Women often relied on writ petitions and sections of the Indian Penal Code (IPC) such as Section 354 and Section 509 to seek justice.
• In cases of unfair dismissal or denial of employment benefits due to sexual advances, employees could approach the Labour Court under the Industrial Disputes Act, 1947.

Judicial Initiations

• Incidents of sexual harassment at the workplace violate fundamental rights of Gender Equality and the Right to Life and Liberty under Articles 14, 15, and 21 of the Indian Constitution.
• Such incidents may also infringe on the victim's right under Article 19(1)(g).
• The Supreme Court emphasized the responsibility of employers and responsible persons to prevent and address acts of sexual harassment.
• In the absence of a statutory definition, the Supreme Court defined sexual harassment based on international norms, including General Recommendation No. 19 of CEDAW.
• The definition includes unwelcome sexually determined behavior such as:
• Physical contact and advances
• Request for sexual favors
• Sexually colored remarks
• Showing pornography
• Any unwelcome sexual conduct

Object of the Act

• The Act aims to protect women from sexual harassment at the workplace and establish procedures for prevention and redressal of complaints.

Definitions

• Aggrieved Women: Refers to women of any age, employed or not, who allege to have been subjected to any act of sexual harassment.
• In relation to a dwelling house: Women of any age employed in such dwelling house.
• Union of India V. Sujith Suklabaidya 2007: The court emphasized that the entire workplace environment should be free from sexual harassment.
• Employed or not: In the case of Jaya Kodate V. Rashtrasant Tukdoji Maharaj Nagpur University, the court clarified that an aggrieved woman is always under a contract of employment with the workplace, regardless of the need for a master-servant relationship.
• Applies to third parties: In the case of Srinivas Rajan V. The Director of Metriculation Schools, Chennai, the Act was deemed applicable to third parties as well.
• Domestic Worker (Sec 2(d)): A woman employed to do household work in any household for remuneration, whether in cash or kind, by an agency, directly, temporarily, permanently, part-time, or full-time. Does not include members of the family of the employer.
• Employee (Sec 2(f)): 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, regardless of remuneration or voluntary basis.
• Employer (Sec 2(g)): The head of any department, organization, undertaking, establishment, enterprise, institution, office, branch, or unit of the appropriate government or local authority, or any person responsible for the management, supervision, and control of a workplace.

When the Employer is Considered to be an Employee

• Jaya Kodate V. Rashtrasant Tukdoji Maharaj Nagpur University: The court noted that employers could also be treated as employees under certain circumstances, emphasizing the need to further the object of the enactment.

When the Employer Turns the Harasser

• S. Srikant Joshy V. Board of Management: This case highlighted that if an employer is charged with sexual harassment, they are not entitled to relief, as the protector has become the predator.

Respondent (Sec 2(m))

• "Respondent" refers to the person against whom the aggrieved woman has filed a complaint under Section 9.

Workplace (Sec 2(o))

• "Workplace" encompasses various entities such as:
• Departments, organizations, undertakings, establishments, enterprises, institutions, offices, branches, or units established, owned, controlled, or financed by the government or local authority.
• Private sector organizations, private ventures, enterprises, institutions, establishments, societies, trusts, non-governmental organizations, and service providers carrying out commercial, professional, vocational, educational, industrial, health services, or financial activities.
• Hospitals or nursing homes.
• Sports institutes, stadiums, sports complexes, and competition or games venues.
• Any place visited by the employee during the course of employment, including transportation provided by the employer.
• A dwelling place or house.
• The definition includes both organized and unorganized workers, ensuring protection for women in the unorganized sector.
• Transportation provided by the employer is considered a workplace if the journey arises out of or during the course of employment and the transport is provided by the employer.

Residential Apartment Where Tenant is Harassed by the Landlord

• Dr. Anil Sethi V. Commission of Women and others: The act aims to prevent sexual harassment at the workplace. A complaint of sexual harassment made by a tenant against her landlord does not fall under this Act, as a landlord cannot be considered an employer of the tenant, and the tenant cannot be an employee.

Residential Place Provided by the Employer

• Sourabh Kumar Mallik V. The Controller and Auditor General of India: The court ruled that a workplace is not limited to places where office work is performed. Any extension of the workplace or any institution under the employer's control, such as a hostel or mess, is considered a workplace.

Any Place Visited for Official Purpose is a Workplace

• Women employees may face harassment not only within the physical boundaries of the workplace but also outside of it, during the course of employment. This includes harassment from a co-worker, an employee of a place visited for official purposes, or by a third party at such a workplace.

Sexual Harassment (Sec 2(n))

• Sexual harassment includes any of the following unwelcome acts or behaviors, either directly or by implication:
• Physical contact and advances
• Demand or request for sexual favors
• Sexually colored remarks
• Showing pornography
• Any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature

Manisha Sharma V. U.o.l

• Sexual harassment should not be interpreted narrowly; it can encompass sexual advances and various forms of verbal or physical harassment of a sexual nature.

I.L.O.'s observation

• The types of behavior considered sexually harassing can vary across cultures. For example, the extent of physical contact tolerated between colleagues may differ from one culture to another.
• Sexual harassment is fundamentally a subjective concept. Any other standard would infringe upon individual autonomy.

Unwelcome Acts

• Hall and ors V. A.A. Sheiban Ltd (1989)85 ALR 503: Whether the behavior was unwelcome is a subjective question from the perspective of the person alleging sexual harassment.
• Silence does not mean an act is welcome: Even if the person experiencing harassment does not speak up or complain about it, the contact might still be unwelcome.
• Actual physical contact is not necessary to constitute sexual harassment: The absence of physical contact or an attempt to molest the complainants is immaterial in determining sexual harassment.
• All physical contact cannot be termed as sexual harassment: Physical contact or advances constitute sexual harassment only if they are part of sexually determined behavior.

Setting up Complaints Committees

• Every employer in a workplace must, through a written order, establish a committee known as the Internal Complaints Committee (ICC).

Members

• Presiding Officer: A senior woman employee.
• Members:
  • Not less than two members from among the employees.
  • One member from a non-governmental organization (NGO) or an association committed to women's causes.
• At least half of the total members must be women.
• The presiding officer and each member of the internal committee shall serve a term of three years from the date of their nomination, as specified by the employer.

Removal of Presiding Officer/Member from ICC

• Grounds for Removal:
  • Contravention of Section 16.
  • Conviction for an offence or pending inquiry under any law.
  • Found guilty in disciplinary proceedings or pending disciplinary actions.
  • Abuse of position rendering continuation in office prejudicial to public interest.
• Is It a Permanent Body?
• Shital Prasad Sharma V. State of Rajasthan: Under Section 4 of the Act, a committee is appointed for a term of three years to address complaints of sexual misconduct by employees.

Presiding Officer's Position

• Shardaben Murlibhai Gurjar V. State of Gujarat (2015): The presiding officer should be of senior rank within the organization to ensure she is senior to any respondent employee, preventing potential influence or intimidation. Additionally, she should possess leadership experience to effectively guide the Internal Committee (IC).

Local Complaints Committee

• Every District Officer for the concerned District shall constitute a Local Complaints Committee (LCC) to receive sexual harassment complaints from establishments that do not have an Internal Complaints Committee (ICC) due to having less than 10 employees, or when the complaint is against the employer himself.

Composition of LCC (Section 7(1))

• The Local Committee shall consist of the following members nominated by the district officer:
• Chairperson: To be nominated from among eminent women in the field of social work, committed to the cause of women.
• Member: One member to be nominated from among women working in the block, taluka, tehsil, ward, or municipality in the district.
• Members: Two members, at least one of whom shall be a woman, nominated from non-governmental organizations or associations committed to the cause of women, or a person familiar with issues related to sexual harassment. Preferably, one nominee should have a background in law or legal knowledge.
• Scheduled Community Representation: At least one nominee shall be a woman belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, or a minority community as notified by the Central Government from time to time.
• Ex Officio Member: The concerned officer dealing with social welfare or women and child development in the district.

Tenure (Section 7(2))

• The chairperson and every member of the local committee shall hold office for a term not exceeding three years from the date of their appointment.

Removal of Chairperson/Members (Section 7(3))

• The Chairperson or any Member of the Local Committee may be removed if they:
  • Contravene the provisions of section 16.
  • Have been convicted for an offence or an inquiry into an offence under any law is pending against them.
  • Have been found guilty in disciplinary proceedings or such proceedings are pending against them.
  • Abuse their position in a manner that makes their continuance in office prejudicial to the public interest.

Complaint of Sexual Harassment (Section 9)

• Any aggrieved woman must make a complaint in writing to the Internal Complaints Committee (ICC) or Local Complaints Committee (LCC) within a period of three months from the date of the incident.
• In case of a series of incidents, the complaint should be made within three months from the date of the last incident.
• Where to file a complaint if ICC has not been constituted?
  • If an employer has less than 10 employees, they are not required to constitute an ICC as per the law.
  • If an employer has 10 or more employees but has not constituted an ICC according to the provisions of the Act.
  • In either of these cases, an aggrieved woman can file a complaint with the Local Complaints Committee (LCC).

Conciliation (Section 10)

• The Internal Complaints Committee (ICC) or Local Complaints Committee (LCC) may initiate conciliation before starting an inquiry at the request of the aggrieved woman.
• No monetary settlement shall be the basis of conciliation.
• Record the settlement and forward it to the employer.
• Provide copies of the settlement to the aggrieved woman and the respondent.
• No further inquiry shall be conducted after the settlement.

Conciliation and Monetary Settlement

• Himanshu Shekhar V. State of Maharashtra (2017): The Internal Committee (IC) or Local Committee (LC) can settle disputes through conciliation. However, monetary settlements should not be the basis for conciliation.

Inquiry

• If conciliation fails,the Internal Committee (IC) or Local Committee (LC) shall proceed with the inquiry according to the service rules applicable to the respondent.
• In the case of a domestic worker, if a prima facie case exists, the Local Committee (LC) shall forward the complaint to the police within 7 days for registering a case.
• If the respondent fails to comply with the settlement arrived under Section 10, the IC or LC can proceed with the case or forward the complaint to the police.
• Both parties shall be given an opportunity to be heard, and the report shall be made available to both parties.
• Notwithstanding anything in section 509 of the Indian Penal Code (IPC), the IC or LC may order the respondent to pay such sums as it considers appropriate to the aggrieved woman in case of conviction.

Ramesh Pal V. UOI

• It is the employer's duty to treat sexual harassment as misconduct under service rules and initiate action accordingly. The proceedings and report of the Internal Committee (IC) are considered a service matter.

For Inquiry, ICC/LCC Having Powers of Civil Court

• Summoning and enforcing the attendance and examination.
• Discovery and production of documents.
• Inquiry shall be completed within 90 days.

Action During Pendency of Inquiry (Section 12)

• Upon a written request from the aggrieved woman, the Local Committee (LC) or Internal Committee (IC) may recommend the employer to:
• Transfer the aggrieved woman or respondent to any other workplace.
• Grant leave to the aggrieved woman up to 3 months.
• Grant any other relief to the aggrieved woman.
• Leave granted shall be in addition to the leave she would otherwise be entitled to.
• Upon recommendation from the ICC/LCC, the employer should implement such recommendations and report back to the ICC/LCC.

Objective of Action During Pendency of Inquiry

• The objective of Section 12 is to provide relief to the complainant during the inquiry into the complaint. Interim measures are subject to the written request of the complainant, and the ICC has the discretion to grant or deny such requests.

Inquiry Report (Section 13)

• Upon completion of the inquiry under the Act, the Internal Committee (IC) or Local Committee (LC) shall provide a report of its findings to the employer or district officer within 10 days from the date of completion of the inquiry. The report should be made available to the concerned parties.
• If the allegation is not proved, the IC/LC recommends to the employer/district officer that no action is required in the matter.
• If the allegation is proved, the IC/LC recommends to the employer/district officer:
• Action for sexual harassment as misconduct in accordance with the service rules.
• If there are no service rules, then other appropriate action.
• Deducting sums from the respondent's salary or wages to be paid to the aggrieved woman or her legal heirs.

Proviso

• If the employer is unable to deduct the sum due to the respondent's absence from duty, the respondent is directed to pay the sum to the aggrieved woman.
• If the respondent fails to pay, the IC/LC forwards the order to the district officer to recover the sum as arrears of land revenue.
• The employer or district officer must act on the IC's recommendations within 60 days.

Is the Recommendation of IC Binding on Employer?

• Prathap Mandal V. UOI: The employer is required to take time-bound action strictly based on the recommendations made by the Internal Complaints Committee (ICC), with no scope for deviation.

Inquiry Report Could Be Set Aside if Findings Are Not Recorded Appropriately

• Reshma MG. V. UOI: If the findings entered by the committee are not recorded following the correct procedure laid down, it can affect the very foundation of the report, making it liable to be set aside.

Punishment for False or Malicious Complaint and False Evidence (Section 14)

• If the IC/LC concludes that the allegations against the respondent are malicious or that the complainant knew the complaint was false, or produced forged or misleading documents, it may recommend action against the woman or the person making the complaint as per service rules.
• Proviso 1: Mere inability to substantiate the complaint or provide adequate proof does not attract action.
• Proviso 2: Malicious intent on the part of the complainant after the inquiry is conducted in accordance with the procedure.
• If the IC/LC finds that any witness has given false evidence or produced forged documents, it may recommend action against such witness as per service rules.

Determination of Compensation Section 15

• The Internal Committee or Local Committee will consider various factors when determining compensation for the aggrieved woman.
• These factors include mental trauma, loss of career opportunity, medical expenses, financial status of the respondent, and payment feasibility.

Prohibition of Publication or Disclosure of Complaint Contents Section 16

• Section 16 prohibits the publication or disclosure of information related to complaints of sexual harassment, including the identities of the aggrieved woman, respondent, and witnesses.
• It applies despite the Right to Information Act, 2005.
• Information about the justice secured for victims can be shared without disclosing personal details.

Applicability of RTI Act

• Section 15 ensures that information regarding sexual harassment complaints is not subject to the Right to Information Act, 2005.

Penalty for Publication Section 17

• If someone handling a complaint or inquiry violates the publication restrictions in section 16, they may face penalties according to applicable service rules.
• If no service rules exist, penalties will be prescribed.

Appeal Section 18

• Individuals dissatisfied with the Internal Committee's recommendations after an inquiry can appeal to a court or tribunal.
• Appeals can be made if the recommendations are not implemented or if the complaint is found to be false or malicious.
• Appeals must be filed within ninety days of the recommendations.

Interference by Courts: When Courts Can Act as Appellate Authority

• In the case of S. Raju Iyer v. JNU, the Delhi High Court clarified its role in departmental proceedings.
• The court does not re-evaluate facts or conclusions but intervenes only if the departmental orders are:
  • Wholly perverse
  • Contrary to organizational laws
  • In violation of natural justice principles
• The court respects the detailed findings of the enquiry committee and does not interfere with them.

Duties of the Employer Section 19

• Employers have specific responsibilities under Section 19 to ensure a safe and respectful working environment.
• These duties include:
  • Providing a safe working environment that protects employees from harassment by anyone at the workplace.
  • Displaying penal consequences for sexual harassment and the order constituting the Internal Committee.
  • Organizing regular workshops and awareness programs to educate employees about the Act's provisions.
  • Offering necessary facilities to the Internal Committee or Local Committee for handling complaints and inquiries.
  • Assisting in securing the attendance of respondents and witnesses before the committees.
  • Providing relevant information to the Internal Committee or Local Committee as needed.
  • Offering assistance to the woman if she chooses to file a complaint under the Indian Penal Code or other laws.
  • Initiating legal action against the perpetrator under applicable laws, especially if the perpetrator is not an employee.
  • Treating sexual harassment as misconduct and taking disciplinary action accordingly.
  • Monitoring the timely submission of reports by the Internal Committee.

Annual Report Section 21

• Internal Committee or Local Committee prepares and submits an annual report to the employer and District Officer.
• District Officer forwards a brief report on annual reports to the State Government.

Duties of the Appropriate Government Sections 23-25

• Monitor implementation and maintain data related to the Act.
• Publicise the Act and its provisions.
• Call for information and inspect records as needed.

Act Not in Derogation of Any Other Law

• The provisions of this Act are supplementary and do not override any other existing laws.

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