The new enactment in 2013: An extra shield for working women

Definitely, 2013 is a new era for working women! What they have not been able to express so far, has been brought out, well defined, well protected and entered into the statute book this year! Not only that; the executives have been notified of the same so that the provision can be enforceable. Usual restriction to the State of Jammu & Kashmir has also been removed. Now, all the provisions are enforceable to the whole territory of India including Jammu & Kashmir! How was all this bought into effect? Through the ‘Sexual Harassment of Women at Work Place (Prevention, prohibition and redressal) Act, 2013’!

The Vishaka Case as a model

D Samuel Abraham

Every working woman should feel proud that we have a powerful, dynamic Supreme Court which intervened into a male-dominated, male-oriented official atmosphere and gave revolutionary orders in the Vishaka Case. Detailed guidelines, alongwith with a penalty of fine upto Rs 50,000/- were also provided. This was a grey area, when our parliamentarians in the first instance, failed to understand the mental trauma a woman may have to face at the workplace. It is the Supreme Court which understood the gravity of the situation and bought the offenders to book.

Special features of this new Act

The newly enacted, Sexual Harassment of Women at Workplace Act, 2013 has many extra provisions. The following are some of them:

• It covers all the states of India where working women are affected;
• It defines ‘working place’ to include a house-maid who is working for a household;
• Two adjudication bodies are provided; one for the employer with jurisdiction within his undertaking and the District Complaint Committee which shall have jurisdiction to include unorganised sectors
• The redressal of complaints should be done within one year
• Compensation can be awarded to the victim by the committee
• Guidelines were given as how to calculate compensation
• Funds were provided for awarding compensation by the State to meet the expenses/ award to the unorganised sectors, who are sexually affected in the work place
• The Internal Complaints Committee shall have powers equivalent to the Civil Court under Code of Civil Procedure 1908 when trying a suit in respect of adjudication procedures

Defining sexual harassment

‘Sexual harassment’ includes any one 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
• Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

Defining work place

• Any department of the government
• All private organisations
• Hospitals and nursing homes
• 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

Behaviour of sexual harassment

• Implied or explicit promise of preferential treatment in her employment
• Implied or explicit threat of detrimental treatment in her employment
• Implied or explicit threat about her present or future employment status
• Interference with her work or creating an intimidating or offensive or hostile work environment
• Humiliating treatment likely to affect her health or safety

Constitution of Internal Committee (ICC)

• Senior level woman employee : Chairman – one
• Not less than two members from among the employees: Members – two or more
• One member from NGO, which is involved in woman welfare – One

Duration of office

• The Presiding Officer and Members chosen from employees shall hold office for three years from the date of nomination.
• Member from NGO may be nominated by employer for specific duration with specific honorarium.

Disqualification of the Presiding Officer and Member of the Committee:

• If the member and Presiding Officer reveals the name, address and identity of the complainant or
• Disseminate any information related to conciliation, enquiry proceedings, recommendations of the internal committee to public for printing, communicate to others including to press and media
• He/ she has been convicted
• He/ she has been found guilty in any disciplinary action or any disciplinary action is pending against him/her
• He/ she has so abused his/her position, which may be prejudicial to the public interest

Time limit for adjudication of complaint

• Any aggrieved woman may make in writing, a complaint of sexual harassment at work place to the ICC, within three months from the date of incident, if it is a continuing offence, three months from the last occurrence
• The ICC may render all help to a woman who does not know how to write a complaint
• The ICC may receive a complaint even after three months of occurrence, if it thinks fit
• If an aggrieved woman is not in a position to make a complaint due to physical, mental incapacity her legal heir or such other person in her place may lodge a complaint
• ICC may settle the dispute through conciliation
• No monetary settlement through conciliation
• The ICC shall complete the inquiry within ninety days from the date of receiving the complaint from the aggrieved person (Section 11 (4))
• The employer shall act upon the recommendation within sixty days of its receipt from the ICC

Powers, jurisdiction and status of ICC

The ICC may recommend to the employer:

• To transfer the aggrieved woman or the delinquent to any other place
• To grant leave to the aggrieved woman upto a period of three months in addition to the leave she would be otherwise entitled
• To grant such other relief to the aggrieved woman as may be required
• To order deduction of wages from the perpetrator and paid to the aggrieved woman employee on the basis of her condition

Enquiry and recommendations by ICC

On the completion of the enquiry under this Act, the ICC shall provide a report of its findings to the employer within a period of ten days from the date of commencement an enquiry and such report made available to the concerned parties. When the ICC, after arriving at the conclusion that the allegation against the delinquent has been proved, it shall recommend:

• To take action against the delinquent as per the Service Rules
• To deduct salary of the delinquent, an appropraite sum to be paid to the aggrieved woman

Calculation of compensation to aggrieved woman

While determining the quantum of compensation, the ICC shall take into consideration:

• The mental trauma, pain, suffering and emotional distress caused to the aggrieved woman
• The loss in the career opportunity due to the incident of sexual harassment
• Medical expenses incurred by the victim for physical or psychiatric treatment
• The income and financial status of the respondent (Delinquent)
• Feasibility of such payment in lump sum or installments

The ICC shall have the same powers as are vested in a Civil Court under code of Civil Procedure, 1908. It may:

• Summon and enforce the attendance of any person and examine him under oath
• Require the discovery and production of documents
• Require any other matter, which may be prescribed
• Enforce its orders by issuing recovery orders under the provisions of arrears of land revenue to the District Collector.

False complaint

• If the ICC, after enquiry finds that the aggrieved woman has made false complaint, it may send a report accordingly to the employer
• If any forged document has been produced by the aggrieved woman employee or fake witnesses have been produced, then the same shall be referred to the employer to enable him to take disciplinary action as per existing provisions of Service Rules
• If the aggrieved woman is not in a position to prove the contents of the complaint, no action is to be taken against her

Duties of the employer

• Adequate displays should be put up by the employer about the penal consequences and the Constitution of Internal Complaints Committee
• At regular intervals, organise workshops and awareness programmes for the ICC members and other employees of the organisation
• Provide facilities to the member of ICC for doing proper enquiry
• Assist to secure the attendance of the respondent and witnesses
• Make information available to the ICC for adjudication of such complaints
• Report to District Officer once in a year.

Third party harassment

The employer will take all steps necessary and reasonable to assist the affected person in terms of support and preventive steps.

Penalty for employer

Where the employer fails to :

• Constitute Internal Complaints Committee
• Take action under Section 13, 17 and 22
• Contravenes the provisions of this Act

He shall be punished with fine up to Rs 50,000; if repeated Rs 1,00,000 besides cancellation of his license/ non renewal or cancellation of registration, which may be required to carry on his business.

Conclusion

As per Para 11 and 12 of Vishaka & Ors vs State of Rajasthan & Ors ordered on August 13, 1997, the judgement and order are enforceable until suitable legislation has been enacted to occupy the field. Therefore, as the provisions of new comprehensive law have been enacted and notified, the orders issued in the above case become obsolete. But there are many employees, including states that without knowing the new legislation, continue to issue guidelines and orders under the Vishaka case because in States what one wing enacts the other wing does not know. Hence this write-up.