Synopsis
With the increasing number in women employment, their security is of paramount importance. The codification of the Sexual Harassment Act – II (‘The Act’) is a much-awaited development and a significant step towards creating awareness on the issue of workplace sexual harassment and ensuring women a safe and healthy work environment.
The author in this article has explained the key provisions of the Act, like applicability for employers to constitute an Internal Complaints Committee (ICC) to address sexual harassment complaints made by women workers, applicability of the Legal Compliance Committee where the ICC is not required, the manner in which the inquiry process is to be carried out by the ICC, etc.
Internal Complaints Committee
Every employer of a workplace, employing 10 or more workers must constitute an Internal Complaints Committee (ICC) to which aggrieved women employees can complain. Thus, if a workplace has less than 10 workers then it need not have an ICC. Note that it refers to 10 workers not 10 female workers. Hence, even if only 1 employee is a lady and the other 9 are males, an ICC is required. Further, the reference is to “workers” and not “employees”. The term workers has not been defined under the Act but one may presume it to be at par with the term “employee”. The Act is silent as to what happens when a workplace employs no women.
The constitution of the ICC should be as follows:
(a) A workplace must have an ICC for each office if the offices/administrative units are located at different places or at a divisional level.
(b) The ICC must have a minimum of 4 members of which at least half should be women.
• The Presiding Officer must always be a women employed at a Senior Level at the workplace. Hence, she must always be an internal senior employee. In case there is no senior level women employee then she can be nominated from any other workplace belonging to the same employer.
What happens if the employer has only 1 workplace and that has only 1 female employee who is not a senior level employee? Who then would be the Presiding Officer? Take a case of an office which has a receptionist as its only lady employee. Would she be the Presiding Officer even though she may be a junior level employee?
• Minimum 2 employees preferably committed to the cause of women/experience in social work or who have legal knowledge. Thus, these 2 members could be male or female.
• One external member from an NGO committed to the cause of women/familiar with issues relating to sexual harassment. Such person must have an expertise on issues relating to sexual harassment and may include a social worker with minimum 5 years’ experience with these issues or a person familiar with labour, service, civil or criminal law. Several organisations have nominated a Lady Lawyer or a Lady NGO worker with experience in this field. This person must always be an external person, i.e., not employed by the workplace. She could be a Consultant/Lawyer to the organisation also but not on its payroll.
• The employee members of the ICC should be replaced by new faces every 3 years.
Local Complaints Committee
For every District, a District Officer would be appointed under the Act. The District Magistrate/ Collector/Deputy Collector could act as such District Officer. Such District Officer would constitute a Local Complaints Committee (LCC) under the Act. The LCC would act as the redressal forum for all organisations not required to constitute an ICC, e.g., those which have less than 10 workers.
Complaint by Aggrieved Woman
Any aggrieved woman can lodge a written complaint of sexual harassment at a workplace with the ICC or the LCC as the case may be. The complaint must be lodged within 3 months from the incident or within 3 months from the last incident in case of a series of incidents. Hence, a stop gap has been provided for lodging the complaint. The Committee can provide a further 3 months’ extension for special cases. The complaint must be filed in 6 copies along with supporting documents and details of the witnesses, if any. The woman may chose to file a complaint under the IPC or any such Law with a Police Station. The Act does not take away this right of a lady.
The first response of the ICC/LCC before initiating an inquiry can be to propose a settlement between the respondent and the aggrieved woman through a conciliation process. However, the offer for such settlement must come from the aggrieved woman alone. Further, a monetary settlement cannot be made as the basis for the conciliation. A settlement would conclude the inquiry process under the Act.
One question which begs attention is must the respondent be a male only? If one reads the Act and the Rules, the definition of the respondent is only a person against whom a complaint is lodged. However, at several places the Rules refer to the preposition “he” for the respondent which tends to suggest that it must be a male alone. But there is no conclusive answer to this question. A similar position exists under the IPC. Recently, the Bombay High Court has raised a question “Can a woman be accused of outraging the modesty of another woman ..?”
Inquiry Process
If a settlement has not been reached/proposed, the Committee would make a thorough inquiry into the complaint against the respondent in the following manner:
(a) Forward a copy of the complaint to the respondent within 7 working days.
(b) Respondent to file his reply within 10 working days of the receipt of complaint by him.
(c) Committee to make a detailed inquiry as per the principles of natural justice. The inquiry must consider all facets. At least 3 members, including the Presiding Officer of the Committee must be present. It must complete its inquiry within 90 days.
(d) Where the Committee feels that there is a prima facie case for a criminal complaint, then it shall forward the same to the police for action under the IPC. Section 354 of the IPC deals with punishment for assault on a woman with an intent to outrage her modesty.
(e) No lawyer can represent either party before the Committee.
(f) During the inquiry the Committee may recommend that the employer transfers the aggrieved women, grants her leave up to 3 months or grants her any other relief. Other relief may include recommendations on restraining the respondent from reporting on the work performance of the aggrieved woman or supervising her academic activity in the case of an educational institution. Thus, the idea is to prevent victimisation as a result of the complaint.
(g) Based on its inquiry, the Committee must arrive at a finding whether or not the respondent is guilty. Accordingly, in cases where they feel that the allegation has been proved, the Committee must recommend to the employer or the District Officer to take action for sexual misconduct. The actions prescribed include:
• Writing a written apology
• Warning/reprimand/censure
• Withholding of promotion/increments • Termination of Service
• Undergoing Counseling sessions
• Carrying out community service – this is probably the first time that we are seeing community service as a means of reprimand. This is very common in the USA.
The Committee may also recommend to deduct such sum from his remuneration to be paid to the aggrieved woman. While determining the sum they will consider the mental suffering of the woman, loss in her career due to the incident, medical expenses incurred on physical/psychiatric treatment; respondent’s financial status.
(h) The entire process from complaint to action, in- cluding the names and identity of the aggrieved woman, respondent, witnesses, are to be kept confidential from the public, press, media, etc. Even an RTI Query cannot be filed in respect of the same since the Act overrides the Right to Information Act, 2005. The penalty for making such information public is Rs. 5,000. However, justice meted out can be disclosed without revealing the names and identity of the aggrieved woman, respondent, witnesses, etc.
(i) Either party may prefer an Appeal against the Committee’s Order before the Appellate Authority notified under the Industrial Employment (Standing Orders) Act, 1946.
Annual Report by ICC
Every ICC must prepare an Annual Report on their committee’s functioning and submit the same to the employer and the District Officer. It must be prepared every calendar year and should include the following:
(a) Number of complaints received in that year
(b) Number of complaints disposed off during that
year
(c) Number of cases pending for more than 90 days
(d) Number of workshops/awareness programmes
organised
(e) Nature of action taken by the employer/District Officer.
Duties of Employer
Every employer has been given certain duties and obligations under the Act:
(a) provide a safe working environment at the workplace and safety from the persons coming into contact at the workplace;
(b) display at any prominent place in the workplace, the penal consequences of sexual harassments and the order constituting, the ICC;
(c) 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 ICC- this is an important role which employers can play. They must educate the employees as to what constitutes harassment and the consequences of the same. A standard operating policy or a manual would be very helpful and each and every employee (whether junior or senior) should be educated on the same. External help from Lawyers/NGOs may also be taken for this purpose. It would be useful to lay down illustrations of real life situations which may be construed as harassment. Some organisations are implementing etiquette/gender sensitisation workshops/role play situations. HR Heads have a very important role to play in this respect.
(d) provide necessary facilities to the ICC/LCC for dealing with the complaint and conducting an inquiry;
(e) assist in securing the attendance of the respondent and the witnesses before the Committee;
(f) make available such information to the Committee as it may require for a complaint;
(g) provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the IPC;
(h) cause to initiate action, under the IPC against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an em- ployee, 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 the Annual Reports by the ICC and include in the same the number of case filed and their disposal. If no report is to be filed by an ICC then he must intimate this number to the District Officer.
Penalty on Employer
The employer would be penalised for his failing to comply with the provisions of the Act:
(a) If he does not constitute an ICC although re- quired to do so;
(b) Does not take action against a respondent on the basis of the recommendation of the ICC’s inquiry;
(c) Contravenes any provisions of the Act.
The first penalty is a fine of up to Rs. 50,000. For a second conviction of the same offence, he shall be liable to twice the punishment meted out during the first offence. Further, it could also lead to the cancellation of his trade licence/approval/registration required for carrying on his business. Thus, a repeat offence carries a very serious consequence.
Dwelling Place / House
The Act has one more interesting facet. It even applies to a dwelling place or a house. The definition of a workplace includes a dwelling place or a house. The employer is defined to include a person or a household who employs or benefits from the employment of a domestic worker. The worker could be for any time, for any nature of work, etc. Further, a domestic worker has been defined as a woman who is employed to do household work for remuneration (in cash/kind) whether directly or through a placement agency. She could be temporary or permanent, part-time or full-time but excludes any member of the employer’s family. Interestingly, an employee is defined to include one who works without remuneration but a domestic worker must be one who works for a remuneration. In relation to a house, an aggrieved woman must be one who is employed at such house. Thus, in case of a workplace (which is not a house), any lady can allege harassment whether or not she is an employee. However, in case of a dwelling house, she must be an employee of that house. Hence, there are two major differences between a house as compared to a workplace other than a house.
All the provisions discussed above would apply even to a dwelling place/house which means that if a house employs 10 or more domestic workers/ servants (male or female) then it would have to constitute an ICC headed by a senior level lady servant and include one external NGO worker/ lawyer. So, if a household has a maid servant and 9 other male servants, drivers, cooks, gardeners, etc., it would have to form an ICC. One wonders whether domestic workers would be in a position to head and handle such an ICC? Is it feasible to ask them to conduct an inquiry, prepare reports and follow principles of natural justice?
Where the ICC/LCC feels that there is a prima facie case of sexual harassment against a domestic worker, then it shall forward the same to the police for action under the IPC.
False Complaints
One fear of this Act is that it could be misused and could go way of section 498A of the IPC (anti-dowry law which has been misused in some cases). Harsh penal provisions have been laid down as a deterrent for false complaints. In case of a false/malicious complaint by a lady, the ICC/LCC can take action against such complainant. The punishment could be on the same lines as that on the respondent in case of a sexual harassment.
Conclusion
Let us hope that this Act achieves the true objectives for which it was enacted and does not end up becoming just another tick-the-box/compliance list. Men would be well advised to remember Shake- speare’s Henry IV, Part I: “The better part of Valour, is Discretion; in the which better part, I have saved my life”. Think before you act or repent in leisure.
