Brief Note on Constitution, Working and Obligations of an Internal Complaint Committee, the Employer, under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
(published in the official Gazette on 22.04.2013)
Prepared by: Nishant Awana, Advocate
The Act was enacted 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.
In order to effectively achieve the objective of the Act, the legislature has made it mandatory for every employer to constitute an “Internal Complaint Committee” in accordance with section 4 of the Act. The constitution of the committee has to mandatorily be in terms of section 4, which is as follows:
1. A Presiding officer who shall be a woman employed at 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:
Provided further that in case the other offices or administrative units of the workplace 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)
2. 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;
3. 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:
*at least one-half of the total Members so nominated shall be women.
*the tenure of President / each member should be such as may be specified by the Employer and shall not exceed three (3) years from the date of their respective nominations.
In terms of sub section (1) of the section 4 of the Act, every employer has to, by an order in writing, constitute a committee to be known as “Internal Complaint Committee” (“ICC”, in short).
In terms of section 9 of the Act, an aggrieved woman may make a complaint of sexual harassment at work place, in writing, to the ICC, in case it is constituted, or else to a Local Complaint Committee (constituted under section 6 of the Act) within a period of 3 months from the date of incident or from the date of last incident.
If the complaint cannot be made in writing, the President / any member shall render all reasonable assistance to the woman for making the complaint in writing.
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 section 9 of the Act.
In terms of section 10 of the Act, the ICC before initiating an inquiry under section 11 of the Act and at the request of the woman take steps to settle the matter between her and the respondent through conciliation.
*No monetary settlement shall be made as a basis of conciliation
*Where settlement is arrived at, the ICC shall record the same and forward the same to the Employer.
*In case of settlement, no further inquiry shall be conducted by the ICC.
The inquiry is to be conducted in accordance with the provisions as contained in section 11 and Chapter V (which consists of sections 12 to 18) of the Act.
Section 11 of the Act states that the Inquiry by an ICC, in case where the Respondent is an employee of the employer, shall be in accordance with the service rules applicable to the Respondent and in case no such rules exist, in such manner as may be prescribed.
Both the parties, the aggrieved person as well as the Respondent, shall be accorded with an opportunity of being heard and a copy of the finding shall be made available to both the parties enabling them to make the representation before the Committee.
For the purpose of making an inquiry, an ICC 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 following matters:
1. summoning and enforcing the attendance of any person and examining him on oath;
2. requiring the discovery and production of documents; and
3. any other matter which may be prescribed.
*The inquiry shall be completed within a period of ninety days.
Action during pendency of the Inquiry:
Under section 12 of the Act, on a request made by the aggrieved woman, an ICC, during the pendency of an inquiry, may recommend to the Employer:
1. Transfer the aggrieved woman or the Respondent.
2. Grant leave to the aggrieved woman up to a period of three (3) months;
3. Grant such other relief to the aggrieved woman as may he prescribed.
*The leave granted to the aggrieved woman under this section shall be in addition to the leave she would be otherwise entitled.
On the recommendation of the Internal Committee, the employer shall implement the recommendations and send the report of such implementation to the Internal Committee.
On the completion of an inquiry under this Act, the ICC shall provide a report of its findings to the employer within a period of ten (10) days from the date of completion of the inquiry and such report be made available to the concerned parties.
Where the ICC arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer that no action is required to be taken in the matter.
Where the ICC arrives at the conclusion that the allegation against the respondent has been proved, it shall recommend to the employer:
1. 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;
2. to deduct, notwithstanding anything contained 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 of the Act:
Punishment for false or malicious complaints:
Section 14 of the Act provides for the ICC which 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, to recommend to the employer to take action against the woman or the person who has made the complaint on her behalf, 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:
*a mere inability to substantiate a complaint or provide adequate proof need not attract action against the complaint under this section.
*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.
Determination of Compensation:
As provided in section 15 of the Act, for the purpose of determining the sums to be paid to the aggrieved woman the ICC shall have regard to:
1. the mental trauma, pain, suffering and emotional distress caused to the aggrieved woman;
2. the loss in the career opportunity due to the incident of sexual harassment;
3. medical expenses incurred by the victim for physical or psychiatric treatment
4. the income and financial status of the respondent;
5. feasibility of such payment in lump sum or in instalments.
Prohibition of publication or making known contents of the Complaint and inquiry proceedings:
The contents of the Complaint, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner.
Under section 18 of the Act, any person aggrieved from the recommendations made under sub-section (2) of section 13 or under clause (i) or clause (ii) of sub-section (3) of section 13 or sub- section (I) or sub-section (2) of section 14 or section 17 or non-implementation of such recommendations may prefer an appeal to the court or tribunal in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist then, without prejudice to provisions contained in any other law for the time being in force, the person aggrieved may prefer an appeal in such manner as may he prescribed.
*The Appeal may be preferred within 90 days from the date of the recommendation.
MISCELLANEOUS OBLIGATIONS ON THE PART OF THE ICC:
In terms of section 21 of the Act, the Internal 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.
DUTIES OF AN EMPLOYER:
In terms of section 19 of the Act, every employer shall:
1. provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;
2. display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting the Internal Committee under sub- section (i) of section 4 of the Act.
3. 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 internal Committee in the manner as may be prescribed;
4. provide necessary facilities to the ICC for dealing with the complaint and conducting an inquiry;
5. assist in securing the attendance of respondent and witnesses before the Internal Committee
6. make available such information to the Internal Committee or the Local Committee, as the case may be, as it may require having regard to the complaint made under sub-section (1) of section 9;
7. provide assistance to the woman if she so 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;
8. cause to initiate action, under the Indian Penal Code or any other law for the time being in force, 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;
9. treat sexual harassment as a misconduct under the rules and initiate action for such misconduct;
10. monitor the timely submission of report by the Internal Committee.
Further, under section 22 of the Act, 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 such number of cases, if any, to the District Officer.
Penalty for non-compliance of the provisions of the Act:
Where the employer fails to-
1. constitute an Internal Committee under sub-section (i) of section 4;
2. take action under sections 13, 14 and 22; and
3. contravenes or attempts to contravenes or abets contravention of other provisions of this Act or any rules made thereunder.
The Employer shall be punishable with fine which may extend to fifty thousand rupees.
If any employer, after having been previously convicted of an offence punishable under this Act subsequently commits and is convicted of the same offence, he shall be liable to
(i) twice the punishment, which might have been imposed on a first conviction, subject to the punishment being maximum provided for the same offence:
Provided that in case a higher punishment is prescribed under any other law for the time being in force, tor the offence for which the accused is being prosecuted, the court shall take due cognizance of the same while awarding the punishment;
(ii) of his licence or withdrawal, or non-renewal, or approval, or cancellation of the registration, as the case may be, by the Government or local authority required for carrying on his business or activity.