Workplace Sexual Harrasment

When was the Sexual harassment of women at workplace (prevention, prohibition & redressal) Act 2013 passed?

The Ministry of Law & Justice has passed the Act on 22nd April 2013. The Rules were passed on 9th December 2013.

2. What are the objectives of the said Act?

This Act is to provide
Protection against sexual harassment of women at workplace Prevention
Redressal of complaints of sexual harassment

3. What is sexual harassment?

The Act in its Section 2n, defines sexual harassment. 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, non verbal conduct of sexual nature

Section 3 (2) of the Act further elaborates that if any of the following circumstances occurs or is present in relation to or connected with any act or behavior of sexual harassment among other circumstances, it 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

4. Who is an aggrieved woman according to the Act?

According to the Act (Section 2a) 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 a dwelling place or house, a woman of any age who is employed in

such a dwelling or house

5. What is the meaning of a respondent?

Respondent means a person against whom the aggrieved woman has made a complaint. (Section 2 m)

6. What is work place according to the Act?

Workplace includes (Section 2o)

Any department, organization, 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 cooperative society
Any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non governmental organization, unit or service provider carrying on commercial , professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service
Hospital 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 to

it
Any place visited by the employee arising out of or during the course of

employment including transportation provided by the employer for undertaking

such journey
A dwelling or a house

7. Who is an employee?

According to the Act (Section 2f), employee means a person employed at a workplace for any work on regular, temporary, adhoc or daily 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.

8. Who is an employer?

According to Section 2g(i) of the Act, in relation to any department, organization, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organization, 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.

Further according to Section 2g(ii) of the Act, it is clarified that in any workplace not covered under the above explanation, any person responsible for the management, supervision and control of the workplace is the employer. Management includes the person or board or committee responsible for formulation and administration of policies for such organization.

Thus with regard to the above, the person discharging contractual obligations with respect to his or her employees is the employer.

According to Section 2g(iv) of the Act, in case of 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 is the employer.

9. What are the duties of the employer?

As per Section 19 of the Act, 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 harassments and the order constituting the ICC
Organize workshops and awareness programmes at regular intervals for sensitising the employees with the Act
Organize orientation programmes for the members of the ICC
Provide necessary facilities to the ICC or the LCC for dealing with the

complaint and conducting an inquiry
Assist in securing the attendance of respondent and witness before the ICC or

the LCC

Make available such information to the ICC or the LCC with regard to the complaint

Provide assistance to the woman if she chooses to file a complaint under IPC or any other law

Cause to initiate action under the IPC or any other law 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 ICC

10.What is the meaning of appropriate Government?

Appropriate Government means in relation to 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 it is the Central government, while those by the State Government, it is the State Government. In relation to any workplace not covered as per the above, and falls within its territory, the appropriate Government means the State Government. (Section 2b of the Act)

11.What is the definition of unorganized sector?

The Act in Section 2(p) defines unorganised sector in relation to a workplace as 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 10.

12.Who is a domestic worker?

According to the Act (Section 2e) 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.

13.What is Internal Complaint Committee?

Every employer of a workplace shall constitute by an order in writing, a Committee to be known as the Internal Complaint Committee (ICC) as per Section 4(1) of the Act.

DRAFT

14.Where should the Internal Complaints Committee be located?

The Internal Complaint Committee should be located at all workplace. 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 located at all administrative units or offices. (Section 4(1) of the Act)

15.Who are the members of the Internal Complaint Committee?

The Internal Complaints Committee shall constitute of the following members (Section 4(2)a, b and c of the Act) :

Presiding Officer : One : a woman employed at a senior level at workplace from amongst employees (in case a senior level women employee is not available, the Presiding officer shall be nominated from the other offices or administrative units of the workplace. 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 dept or organization)
Members : not less than two : from employees preferably committed to the cause of women or who have experience in social work or have a legal knowledge
Member : One : from amongst non governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment

At least one half of the total members shall be women.

16.What is the tenure of the members of the Internal Complaint Committee?

The Presiding Officer and every members of the Internal Committee shall hold office for a period not exceeding three years from the date of nomination as member. (Section 4 (3) of the Act).

17.Which members of the Internal Complaint Committee will be paid fees or allowances, why and how much?

The member appointed from amongst the non governmental organizations or associations shall be paid fees or allowances for holding the proceedings of the Internal Committee. (Section 4(4) of the Act)

Section 3 of the Rules elaborates that the member appointed from amongst the non government organizations shall be entitled to an allowance of Rs 200 per day for holding the proceedings of the Internal Committee. Reimbursement of travel cost incurred in travelling by train in 3rd AC or AC bus and auto rickshaw or taxi or the actual amount spent by him/her, which ever is less will also be done.

18.Who is a person familiar with the issues relating to sexual harassment who can be a member of the ICC? (Refer Question 15)

Such a person can be a social worker with at least 5 years experience in the field of social work which leads to creation of societal conditions favourable towards empowerment of women and in particular in addressing workplace sexual harassment or a person who is familiar with labour, service, civil or criminal law as per Section 4 of the Rules.

19.Who is responsible for the payment of fees and allowances to the member as specified above?

The employer shall be responsible for the payment of allowances. (Section 3 of Rules)

20.Who is the District Officer?

The District Magistrate or Additional District Magistrate or the Collector or Deputy Collector may be notified as the District Officer for every District (Section 5). In Odisha vide notification number 23399 dated 7th Dec 2013 of the Women and Child Development department, the Collector of each district is declared as the District Officer for that district. (notification in Annexure)

21.What are the duties and powers of the District Officer?

As per Section 20, the District Officer shall monitor the timely submission of reports by the LCC and take such measures as may be necessary for engaging non governmental organizations for creating awareness on sexual harassment and the rights of the women.

22.What is Local Complaints Committee?

In a district, a committee known as Local Complaints Committee (LCC) has to be constituted. (Section 6(1) of Act)

23.Who will constitute the Local Complaints Committee?

The District Officer shall constitute the Local Complaints Committee in a district. (Section 6(1) of Act)

24.What is the work of the Local Complaints Committee?

The Local Complaints Committee is to receive complaints of sexual harassment from establishments where the Internal Complaints Committee has not been constituted due to having less than 10 workers or if the complaint is against the employer himself. (Section 6(1) of Act)

25.What is the jurisdiction of the Local Complaints Committee?

The jurisdiction of the Local Complaints Committee is extended to the areas of the district where it is constituted (Section 6 (3)).

26. Who are the members of the Local Complaints Committee?

The Local Complaints Committee shall constitute of the following members (Section 7(1) of the Act) :

Chairperson : One : eminent woman in the field of social work and committed to the cause of women.

Member : One : nominated amongst the women working in the block, taluka or tehsil or ward or municipality in the district

Members : Two : to be nominated from amongst non governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment

At least one of the two members shall be women.
At least one of the two should have a back ground in law or legal knowledge
At least one of the two shall be a woman belonging to the SC or the ST or OBC or

minority community

Member : ex officio : the concerned officer dealing with the social welfare or women and child development in the district

27.What is the tenure of the members of the Local Complaint Committee?

The Chairperson and every members of the Local Committee shall hold office for a period not exceeding three years from the date of nomination as member. (Section 7(2) of the Act).

28.Who is a nodal officer?

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.

29.What is the work of the nodal officer?

The nodal officer is to receive complaints and forward the same to the concerned Local Complaints Committee within a period of 7 days (Section 6(2)).

30.Which members of the Local Complaints Committee will be paid fees or allowances, why and how much?

The Chairperson and members of the Local Committee other than member nominated from block/taluka or tehsil or ward or municipality and the concerned officer dealing with social welfare, shall be paid fees or allowances for holding the proceedings of the Local Committee. (Section 7(4) of the Act)

Section 5 of the Rules elaborates that the Chairperson of the Local committee shall be entitled to Rs 250 per day and the members other than member nominated from block/taluka or tehsil or ward or municipality and the concerned officer dealing with social welfare shall be entitled to Rs 200 per day for holding the proceedings of the Local Committee. Reimbursement of travel cost incurred in travelling by train in 3rd AC or AC bus and auto rickshaw or taxi or the actual amount spent by him/her, which ever is less will also be done.

31.Who will make payments to the Local Complaints Committee?

The District Officer will be responsible for payment of allowances.

32.How will a complaint be done?

Any aggrieved women may make in writing a complaint of sexual harassment at workplace to the Internal committee/ Local Committee within 3 months from the date of incident or the date of the last incident in case of a series of incidents. In case the women cannot write, the Presiding officer/ any member of Internal Committee/ Chairperson/ any member of Local Committee shall render all reasonable assistance. (Section 9(1) of the Act)

33.What will be the action of the ICC or the LCC on receipt of a complaint?

Option A : Upon receipt of the complaint, the ICC or LCC must proceed to make an inquiry in accordance with the service rules applicable to the respondent or where no such service rules exist, in accordance with rules framed under the Act ( Section 11(1) of the Act).

Option B : The ICC or the LCC may forward the complaint to the Police (as elaborated in question 36 below).

34.What is to be done when both the parties are employees?

Where both the parties are employees, the parties during the course of the 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.

35.What is the power of the ICC and the LCC?

For the purpose of making an inquiry the ICC or the LCC 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 (Section 11(3)) :

Summoning and enforcing the attendance of any person and examining him on oath

Requiring the discovery and production of documents Any other matter which may be prescribed

36.When can the ICC or the LCC forward a complaint to the police?

The ICC or the LCC can forward a complaint to the Police for registering the case under Section 509 of the IPC and any other relevant provisions of the IPC within 7 days. (Section11(1))

In the event of non compliance by the respondent of the terms and conditions of a settlement agreed upon and when the aggrieved woman informs the ICC or the LCC about it, the ICC or the LCC may make an inquiry or forward the complaint to the Police.(Section 11(1))

37.What is the time limit for an aggrieved woman to give a complaint?

38.Can the time limit of 3 months be extended?

The Internal Committee and the Local Committee can extend the time limit not exceeding another 3 months if it is satisfied that the circumstances were such which prevented the woman from filing the complaint within the said period (Section 9(1)).

39.Can someone else file the complaint under the Act?

If the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death, her legal heirs or such other person as may be prescribed may do so. ( Section 9(2) of the Act)

40.What is the scope and process for Conciliation and Settlement?

Before initiating an inquiry, the ICC or LCC may and at the request of the aggrieved woman, take steps to arrive at a settlement between the parties. However, no monetary settlement can be made as the basis of such conciliation (Sec. 10(1) of the Act)

Where such a settlement has been arrived at, the ICC or the LCC, record the settlement and forward the same to the employer or the District officer to take action as specified in the recommendation (Section 10(2) of the Act).

The ICC or the LCC shall provide copies of the settlement to the aggrieved woman and the respondent (Section 10(3)).

41. Can further inquiry be made after settlement?

Where a settlement is arrived at, no further inquiry shall be conducted by the ICC or the LCC. (Section 10(4) of the Act).

However, if the aggrieved woman informs the ICC or the LCC that any term or condition of the settlement has not been complied with by the respondent, the ICC or the LCC shall proceed to make an inquiry into the complaint or forward the complaint to the police. (Section 11(1) of the Act)

42.What is the time limit of inquiry?

The inquiry should be completed within a period of 90 days (Section 11(4)).

43.What can the ICC or LCC recommend to the employer during the pendency of an inquiry? What does the employer do on such recommendations?

During the pendency of the inquiry of the ICC or LCC, on a written request by the aggrieved woman, the ICC or LCC can recommend the following to the employer (Section 12(1) of the Act):

Transfer the aggrieved woman or the respondent to any other workplace or Grant leave to the aggrieved woman upto a period of 3 months or
Grant such other relief to the aggrieved woman as may be prescribed

The leave granted to the aggrieved woman under Section 12(1) is in addition to the leave that she is otherwise entitled.

The employer shall implement the recommendations made by the ICC or the LCC and send the report of such implementation to the ICC or the LCC. (Section 12(3)).

44.What is to be done by the ICC or LCC on completion of inquiry?

On completion of inquiry the ICC or LCC will provide a report of the findings to the employer or the District Officer within 10 days from the date of completion of the inquiry and such report will be made available to the concerned parties. (Section 13(1) of the Act).

45.What can the ICC or the LCC recommend to the employer or the District Officer on completion of the inquiry?

Option 1 : If the ICC or the LCC arrives at the conclusion that the allegation against the respondent has not been proved, it will recommend to the employer and the District Officer that no action is required to be taken. (Section 13(2) of the Act)

Option 2 : If the ICC or the LCC arrives at the conclusion that the allegation against the respondent has been proved, it will recommend to the employer and the District Officer, the following as per Section 13(3):

To take action for sexual harassment as a misconduct in accordance with the provisions of the service rule applicable to the respondent or where no such service rules have been made , in such manner prescribed

To deduct from the salary or wages of the respondent such sum to be paid to the aggrieved woman or to her legal heirs

In case the employer is unable to make such deductions from the salary of the respondent due to his being absent or cessation of employment, the ICC or the LCC may direct to the respondent to pay such sums to the aggrieved woman.

In case the respondent fails to pay the sum, the ICC or the LCC may forward the order for recovery of the sum as an arrear of land revenue to the concerned District officer. (Section 13 (3) ii of the Act)

Option 3 : If the ICC or LCC 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 compliant has produced any forged or misleading document, it may recommend to the employer or the District Officer to take action against the woman or the person who has made the complaint. (Section 14(1) of the Act.)

46.What is the time limit for the employer or the District Officer to act on the recommendations of the ICC or the LCC?

The employer or the District Officer have to act upon the recommendations within 60 days. (Section 13(4) of the Act)

47.What will the ICC or the LCC do if it arrives at a conclusion that the allegation against the respondent is malicious?

If the ICC or LCC 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 compliant has produced any forged or misleading document, it may recommend to the employer or the District Officer to take action against the woman or the person who has made the complaint in accordance with the provisions of the service rules. (Section 14(1) of the Act.)

48. What will the ICC or the LCC do if it arrives at a conclusion that the witness has given false evidence etc?

If the ICC or the LCC 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 to take action in accordance with the provisions of the service rules or in such manner as may be prescribed. (Section 14(2) of the Act)

49.Can the ICC or LCC recommend compensation payment of an amount to the aggrieved woman? If yes, who will pay, on what basis and how?

If the ICC or the LCC arrives at the conclusion that the allegation against the respondent has been proved, it will recommend to the employer and the District Officer to deduct from the salary or wages of the respondent such sum to be paid to the aggrieved woman or to her legal heirs. In case the employer is unable to make such deductions from the salary of the respondent due to his being absent or cessation of employment, the ICC or the LCC may direct to the respondent to pay such sums to the aggrieved woman. In case the respondent fails to pay the sum, the ICC or the LCC may forward the order for recovery of the sum as an arrear of land revenue to the concerned District officer. (Section 13 (3) ii of the Act)

As per Section 15, the basis of determining sums to be paid to the aggrieved woman under Section 13(3) ii under the Act will be –

Mental trauma, pain, suffering and emotional distress caused to the aggrieved woman
Loss in career incurred by the victim for physical or psychiatric treatment
Income and financial status of the respondent
Feasibility of such payment in lumpsum or installments

50.Can contents of complaint and inquiry proceedings be made public?

The contents of the complaint, identity and address of the aggrieved woman, respondent and witness, information relating to conciliation and inquiry proceedings , recommendations of the ICC or the LCC and the action taken by the employer or the District Officer shall not be published, communicated or made known to the public, press and media.

However information may be disseminated regarding the justice secured to the victim of sexual harassment without disclosing the name, address, identity or any other particulars. (Section 16 of the Act)

51.What is the penalty for publication or making known contents of complaint or inquiry?

If any person contravenes the provisions of Section 16 of the Act, he shall be liable to penalty in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist, in such manner as may be applicable. (Section 17 of the Act)

52.What are the provisions for appeal?

Person aggrieved due to the following conditions may prefer an appeal to the Court or Tribunal or in such manner (Section 18(1) of the Act):

Recommendation under Section 13(2) of the Act : If the ICC or the LCC arrives at the conclusion that the allegation against the respondent has not been proved, it will recommend to the employer and the District Officer that no action is required to be taken.
Recommendation under Section 13(3) i/ii: If the ICC or the LCC arrives at the conclusion that the allegation against the respondent has been proved, it will recommend to the employer and the District Officer, the following : To take action for sexual harassment as a misconduct in accordance with the provisions of the service rule applicable to the respondent or where no such service rules have been made , in such manner prescribed and/or to deduct from the salary or wages of the respondent such sum to be paid to the aggrieved woman or to her legal heirs.
Recommendation under Section 14(1/2): If the ICC or LCC 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 compliant has produced any forged or misleading document, it may recommend to the employer or the District Officer to take action against the woman or the person who has made the complaint. (Section 14(1) of the Act.). If the ICC or the LCC 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 to take action in accordance with the provisions of the service rules or in such manner as may be prescribed. (Section 14(2) of the Act)
Recommendation under Section 17 : If any person contravenes the provisions of Section 16 of the Act, he shall be liable to penalty in accordance with the provisions of the service rules applicable to the said person or where no such

service rules exist, in such manner as may be applicable.
Non implementation of recommendations

53.What is the time limit of the appeal?

Appeal has to be done within a period of 90 days. (Section 18(2) of the Act)

54. What the mechanism for Annual report?

The ICC or the LCC have to prepare in each calendar year an Annual report and submit the same to the employer and the District Officer(Section 21 (1)). The form and time of submission have to be prescribed.

The District Officer has to forward a brief report on all the Annual reports received to the State Government.

55.What has to be contents of the Annual Report?

The employer has to include in its report the number of cases filed and their disposal in the Annual report (Section 22).

56.What is the monitoring mechanism?

The appropriate Government will monitor the implementation of this Act and maintain data on the number of cases filed and disposed of.

57.What measures are to be taken by the appropriate Government towards the publicity of the Act?

The appropriate Government may (a) develop relevant information, education, communication and training materials and organize awareness programmes; (b) formulate orientation and training programmes for the LCC members. ( Section 24)

58.What are the powers of the appropriate Government under this Act?

The appropriate Government in public interest or in the interest of women employees at a workplace call upon any employer or District Officer to furnish in writing such information relating to sexual harassment; authorize any officer to make inspection of the records and workplace in relation to sexual harassment. ( Section 25 (1))

59.What is the penalty for non compliance with provisions of the Act?

Punishment with fine upto Rs 50,000 (fifty thousand) can be done on the employer if there is no Internal Complaints committee as per subsection (1) of Section 4 or if the employer has not taken action under section 13, 14 and 22 or if the employer has contravened or attempts to contravene or abets contravention of other provisions of this Act or any rules made under the Act. (Section 26(1))

Twice the punishment (which might have been imposed on a first conviction) is liable if any employer after having been previously convicted of an offence punishable under the Act commits and is convicted of the same offence, provided that in case a higher punishment is prescribed under any other law for the time being in force, for the offence for which the accused is being prosecuted, the court shall take due cognizance of the same while awarding the punishment (Section 26(2) (i)).

There can be cancellation of license or withdrawal or no renewal or approval or cancellation of registration by the Government or the local authority if any employer after having been previously convicted of an offence punishable under the Act commits and is convicted of the same offence (Section 26(2)(ii)).

60.When will the Court take cognizance of the offence?

The Court will take cognizance of the offence on a complaint made by the aggrieved woman or any person authorized by the ICC or the LCC (Section 27(1))

No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class will try any offence punishable under this Act (Section 27(2)).

Every offence under this Act is non cognizable.

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