Sexual harassment of women at workplace in the light of recent legislative changes

Introduction:

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (‘The Act’) has adopted the definition as envisaged by the SC in the Vishaka Judgment[1] and any unwanted act which is sexual in nature constitutes to be an act of sexual harassment at work place. It includes any act, conduct or behavior which is unwelcoming such as physical intimacy[2] or advances[3], requesting or demanding sexual favors[4], watching or showing pornography or any other physical, verbal or non verbal act of sexual nature. Physical behavior of a sexually oriented nature includes all undesirable physical contact. It also includes verbal conduct such as unwelcome innuendoes, recommendations and hints, sexual gestures, remarks with sexual hints, questionable or offensive sex-related jokes or affronts or unwelcome graphic remarks on the recipient’s body made in their presence or targeting them. Sexual harassment which is non-verbal in nature includes unwelcome conduct[5], foul subjection and undesirable exhibition of sexual contents, objects and pictures through any media.

In Apparel Export Promotion Council V. A.K. Chopra[6], the SC depended upon on the definition envisaged in Vishakha’s Judgment and held that “the act of the respondent was unbecoming of good conduct and behavior expected from a superior officer and undoubtedly amounted to sexual harassment…” It held the superior officer liable for sexual harassment for molesting his junior woman employee at the workplace.

Sexual harassment refers to an undesirable or unwelcoming conduct which is personally offending, enfeebles the morale and thereby, interferes with the ethics and values of the workplace. It is understood as a completely subjective experience.[7]

The term ‘unwelcomed’ stands as a bottleneck into the definition of sexual harassment as it is subjective and contingent to the perspective of a prudent man. Interpretation of a reasonable man comes into picture here making it more difficult to contemplate on a definite meaning. Further, inserting words such as textual, graphic or electronic activities could have made the definition well equipped to deal with the technological development. Subsequently, the definition should be more advanced, in order to ascertain a broader measure and standard for determining cases of sexual harassment.

 

Procedure for filling a complaint:

The Act prescribes a period of three months from the date of last incident within which a written complaint can be filed by an aggrieved woman. Usually, any intimation made to the immediate supervisor or employer would suffice to begin the inquiry procedure. However, a written complaint for sexual harassment at working place can be filed before any of the following committees and institutions:

• Internal Complaints Committee (ICC)[8]: ICC is a grievance redressal forum having powers to investigate the complaints made before it, guide an aggrieved woman to file a complaint and to make the needful recommendations to the employer in relation to the investigation. An aggrieved woman can make an official complaint before this committee.
• Local Complaints Committee (LCC): LCC is set up where ICC has not been constituted and a complaint can be made before it. Also, when the allegations are against the employer himself and to avoid the case from being compromised, a complaint can be lodged before LCC.

In situations where LCC may not be readily and easily accessible, the Act authorizes District officer to designate a nodal officer in very block, tehsil, taluka in rural/ tribal area or municipality in urban areas who can forward the complaints made before it to LCC within 7 days.

• Local police station: The Act has prudently left it to the choice of the aggrieved party to file a police complaint or not. Where provisions of Indian Penal Code or any other law for the time being in force are applicable, an aggrieved woman and even ICC or LCC can file a complaint at the police station[9]. The Act states that every employer must assist the aggrieved woman in filing a complaint with the police regarding the sexual harassment either by the employee of the workplace[10] or a third party to the workplace[11]. Another implied duty of the employer underlying this is to inform the complainant about her right to file a police complaint and other relevant information pertaining to it. Where an aggrieved woman cannot make a written complaint, the Presiding officer, Chairperson or any member of internal committee or local committee shall assist her throughout the inquiry procedure.[12]

Powers of ICC and LCC:

Both these redressal committees have wide powers to investigate into the matter complained before them and can guide the aggrieved in seeking remedy against the sexual harassment faced by her. With respect to making an inquiry, they shall have the same power as conferred upon civil court under CPC, 1908 which includes summon and order the attendance of any person, to examine the summoned person on oath, discover or require any document to be produced before the Court or any other power as may be prescribed.[13]The jurisdiction of LCC is elongated to those areas of district where it is set up.[14]

Neither the Act nor the Rules under it provide for suo motto action to be taken by ICC. Parliamentary Standing Committee[15] in one of its discussions opined that the Act takes into consideration contingencies like physical or mental incapability or death, which authorizes the legal heir or any other person legally authorized person to file a complaint. But as seen and observed, there may be instances when the legal heir or such an authorized person may not file a complaint or the aggrieved woman herself refrains herself from complaining about the sexual harassment faced by her and in such cases, where a very serious offence has been done which is covered under this Act, ICC may be authorized to take suo motto action to initiate inquiry. But this proposal has not yet been approved.

Eligibility criteria and role of an external member in the process of inquiry by the ICC:

The Act prescribes the external person to be familiar with the issues relating to sexual harassment as the only eligibility criteria for appointment. In one case, it was pleaded that since the allegations were made against the senior most officers by the petitioners, an independent agency must be directed to inquire in the complained matter. The court[16] ordered that allegations have to be examined by a legally constituted complaints committee as per Visakha guidelines. Also, including an external member in the ICC is confirming to the guidelines issued in the Visakha’s case.

The role of an external member in the ICC Committee is indispensible. The supervisor or a member of the ICC may sometimes be accused of committing harassment against the complainant and in such a situation, employer must ensure that at least one person within the composition of ICC is an external member to the company. This is to secure impartiality in dealing with the complaint. A third party must be involved to arrest the possibility of any undue pressure or influence from top level management. As emphasized in various cases[17], the Complaint Committee must involve an external member or body which is conversant with the issues which arise in matters of sexual harassment and if the management is in breach of its obligation, the complaint of the aggrieved is to be re-examined after constituting a proper committee. However, the Act does not permit the employer to outsource handling of complaints to external bodies.

Liability for sexual harassment at workplace on an ex-employee:

Any person who sexually harasses another person at a workplace within the scope of this Act is liable for his conduct. The Act states that an action against the respondent can be taken by the employer in accordance with the service rules of the organization. Service rules of an organization ceases to apply on an ex-employee on the account that he does not render any service to them. Ordinarily, after termination of employment or retirement from service, it is reasonable to deduce that an employer cannot initiate an action against an ex-employee. However, it may be inferred that an ex-employee can be made liable from the practice of making deductions from any dues payable by the organization to such an ex-employee. This widens the scope of obligation on employers. Since the Act does not expressly states anything about ex-employees, the position regarding the same remains ambiguous.

Inquiry after the settlement:

The Act provides to resort to settlement between parties upon the request of the aggrieved or if the ICC or LCC deems fit to do so. No specific procedure for settlement before an inquiry is incorporated in the Act. Therefore, ICC has the flexibility to conduct the settlement proceedings between the parties in any fashion as per its choice but monetary settlement cannot be the basis of conciliation between the parties in any case.[18] Where parties have reached to a mutual settlement, the ICC or LCC shall record the settlement and forward the same to the employer or manager or the District officer to proceed with the determinations made in the suggestions.[19]The copies of the settlement must be provided to both the parties by the ICC or LCC. [20] Ordinarily, no further inquiry shall be made by the ICC or LCC after settlement is complete.[21] However, the ICC or the LCC can continue to make an investigation into the complained matter or forward the grievance to the police if the aggrieved woman intimates them about breach of any terms or conditions of the settlement.[22]

Continuance of investigation during pendency of criminal case:

The Act fails to answer the question whether ICC or the Department can continue to investigate the matter during the pendency of criminal case against the accused or a stay be put on all its inquiry proceedings then. Following cases can help to draw a possible solution to this query.

The SC in 1988 was of the opinion that since criminal and disciplinary proceedings were stranded on the same facts, the disciplinary action should have been stayed.[23] Where the case involved a question of law or facts or is of serious and grave nature, it was advised to the employer to await the Judgment of the court.[24] However, Orissa High Court in 1989[25] held that the scope and field of both the proceedings were independent and distinct and the internal inquiry could continue even after a decision of the court in a criminal case.

The SC has held in its 1999 Judgment that the criminal case proceedings and the departmental proceedings runs in different jurisdictional areas.[26]The question whether internal inquiry should be continued or not after the criminal case is filed was posed before the SC.[27] The plea of continuance of internal inquiry resulting to contempt of court during the pendency of a criminal case was rejected by the court. The court observed that the issue to be determined remains the same in both the internal and criminal proceedings. But the pendency of the case before the court cannot bar the taking of any action by the internal or disciplinary committee. Disciplinary authority can take any action to assist the aggrieved woman and initiating or continuing internal proceedings with sincere intentions cannot be understood as an interference with the justice delivery system. An employee can obtain an order to stay the internal proceedings. In the absence of such a stay order, the internal authorities can freely exercise their power to inquire.

It can be concluded from analyzing these cases that both the proceedings can be initiated or continued at the same time as each one is independent and distinct from one another. Where the matter complained of is grave in nature, decision of the criminal court must be awaited before proceeding with any action. Also, if the criminal proceeding is being unduly delayed, the internal proceedings can be initiated or continued.

Compliances to be adhered by the employer at the workplace:

The Act places various duties on employers to ensure that there is an atmosphere of mutual respect to prevent sexual harassment at the workplace. Primary responsibility of an employer is to provide a safe working environment to both the employees and other people who visit the workplace.[28] To ensure a safe working environment and to make the work place free from exploitation, discrimination and sexual harassment in all of its forms, the Act prescribe to constitute the ICC where the employees are more than 10 in number.[29] The penal consequences to be faced on violation of any work place rules and regulations must be clearly displayed.[30] Also, the names of and contact information of the members of ICC must be declared and shared with all. Every employer must undertake to organize orientation and awareness programmes for members of ICC and employees respectively, at equal intervals to sensitize the issues and its consequences.[31] Other obligations include providing assistance to ICC or LCC in dealing with the complaint and in conducting the inquiry and also to the aggrieved woman if she chooses to file a police complaint under IPC or any other law for time being in force.[32]Also, the employer is duty bound to include the information regarding sexual harassment in annual report[33] and to monitor the timely submission of reports by the ICC.[34]

When the employer fails to adhere to the compliances with the provisions of Act, penalty for non compliance is imposed which may extend to fifty thousand rupees. Further, it provides a punishment to either pay an amount which is twice the punishment or to cancel his license to carry on business if the employer is convicted for the same offence twice. [35]

Basis for determining the amount of compensation:

If the allegations against the respondent are proved, the ICC or LCC can recommend the employer or District Officer to deduce such an amount from the salary or wages of the respondent which is to be awarded as compensation to the aggrieved party or her legal heirs. If such deductions cannot be made, respondent must pay such an amount to the aggrieved woman as directed.

The basis for ascertaining the amount to be awarded as compensation to the aggrieved woman is provided under the Act.[36] It can be with respect to the mental trauma, pain, suffering and emotional distress caused to the aggrieved party or on the loss in the career opportunity or income due to such an incident or medical expenses to cover the cost of treatment and keeping in mind the economical status of the opposite party. In a recent 2013 case, the Court held that the Appellant is entitled to a compensation of Rs 5 Lacs by the Railway department.[37] The Court directed to pay 2.5 lacs to each of the three petitioners and 1 lakh to the fourth petitioner in a complaint filed for sexual harassment.[38]

The purpose of monetary compensation to the victim is to compensate for the physical, mental and psychological harm suffered by her. Consideration for compensation can be deduced from various indicators provided in the Act. The inclusive parameters for ascertaining the amount of compensation can be interpreted to include within its ambit other factors such as depression, injury to feeling, bodily harm, nervous shock, intensity of the crime, incidental damages, psychological and reputational damages or any other ill effect of the act on the aggrieved party.

 

Conclusion:

A civil suit can also be filed for damages under tort laws. The basis for filing the case would be mental anguish, physical harassment, loss of income and employment caused by the sexual harassment. The harasser’s actions may be a crime, depending on the state in which they occurred. If the sexual harassment consisted of a physical attack, criminal sexual conduct, stalking, threats or another crime, the harasser may face criminal penalties.

Generally, employers are accountable to the misconduct and misbehavior of their workers or agents during the course of employment. Unless they prove that just and reasonable measures were taken to ensure security to women and to prevent sexual harassment at the workplace, employers remain liable for such an act. The scope of the Act is broad enough to protect woman from being harassed by anyone at the workplace.

*Amity Law School, Rajasthan, B.B.A. LL.B.(H), mailraavimehta@gmail.com

[1] Vishakha & Ors. Vs. State of Rajasthan & Ors (Jt. 1997(7) SC 384)

[2] Samridhi Devi V. Union of India and Ors 125 (2005) DLT 284

[3] Pushkala vs High Court Of Judicature (2007) 4 MLJ 692

[4] Reshma M.G. V. Union of India and Ors. , 2016 (Original Application No. 180/00722 of 2014)

[5] D.S. Grewal vs Vimi Joshi & Ors on 17 December (2009)2SCC210

[6] AIR1999 SC625

[7] Dr. Punita K. Sodhi v. Union of India & Ors. W.P. (C) 367/2009 & CMS 828, 11426/2009

[8] Section 4

[9] Section 11(1)

[10] Section 19(g)

[11] Section 19 (h)

[12] Section 9(1)

[13] Section 11(3)

[14] Section 6(3)

[15] Clause 6.5 of the Report of the ‘Parliamentary Standing Committees on Human Resource Development”

[16] Bharati Ray V. Director, Xavier Institute of Management and Ors (2001) 20 OCR 269

[17] Arati Durgaram Gavandi V. Managing Director, Tata Metaliks Limited and Ors (1997) 6 SCC 24

[18] Section 10(1)

[19] Section 10(2)

[20] Section 10(3)

[21] Section 10(4)

[22] Section 11(1)

[23] Kusheshwar Dubey V. Bharat Coking Coal Ltd. (1988) 4 SCC 319: AIR 1988 SC 2118, Para 6

[24] Shri Bimal Kanta Mukherjee V. Newsman’s Printing Works 1956 Lab IC 188

[25] Jayaram Panda V. D.V. Raiyani and Ors AIR 1989 Orissa 109

[26] M. Paul Anthony V. Bharat Gold Mines Ltd. and Anr (1999) I LLJ 1094 SC

[27] Jang Bahadur Singh v. Bail Nath Tiwari (1969) I SCR 134: AIR 1969 SC 30

[28] Supra, Note 2

[29] Section 4

[30] Section 4(1)

[31] Rule 13

[32] Section 19(g) & (h)

[33] Section 22

[34] Section 19(j)

[35] Section 26

[36] Section 13(3) ii

[37] Manisha Sharma V. UOI and Ors 2013 XAD (Delhi) 557: 196 (2013) DLT 741

[38] U.S. Verma, Principal and Delhi Public School Society V. National Commission for Women and Ors 163 (2009) DLT 557