PREVENTION OF SEXUAL HARASSMENT AT WORKPLACE ACT, 2013

Author :- Sonali Sinha of ICFAI University Dehradun

1. Inquiry into complaint by ICC:

Law: In the case where settlement is not attainable through conciliation then ICC shall conduct an inquiry into the complaint. As per section 11 of the act two procedures are laid down, one where the respondent is an employee then the inquiry is conducted as per the service rule applicable, and second, in the absence of service rule, the inquiry is conducted as per the manner prescribed in the rules.

Description: The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 provides that the complainant shall submit to the ICC six copies of the complaint besides supporting documents and the names and addresses of the witnesses.

After receiving the complaint, the ICC within 7 working days shall send one of the copies to the respondent. After that, the respondent needs to submit his reply or Written statement beside his list of documents and names and addresses of witnesses to the complainant within 10 working days of such receipt. The ICC shall after considering the submission of documents from the respondent can initiate the inquiry. The procedure of inquiry carried on shall be following the principles of natural justice and the presence of a minimum of three members including the Presiding officer is necessary. In case if any party i.e. either the complainant or the respondent without giving reasonable cause fails to mark their presence in 3 consecutive hearing then ICC can terminate the inquiry or pass an ex-parte order. However, before terminating or passing an ex-parte order the ICC shall serve a notice in writing, fifteen days in advance, to the parties concerned. Both the parties are prohibited from engaging any legal practitioner to represent their case.

The inquiry procedure shall be completed within 90 days of receiving the complaint. The ICC after the completion of the inquiry shall provide a report of the findings to CPO and Director & General manager and must be made available to the parties immediately. The ICC conducting an inquiry shall have the same power as are vested in the Civil Court.

Judgments:

In Ashok Kumar Singh vs University of Delhi, it was held by the Delhi High Court that the respondent is entitled to cross-examine the witnesses by submitting a list of questions to the committee hence, not revealing the identity of the witnesses.

In the case of LS Sibu vs Air India, the Kerala High Court held that the respondent has the right to contradict the witness deposition.

In Gaurav Jain v. Hindustan Latex Family Planning Promotion Trust and ors, it was held that the ICC shall adhere to the principles of natural justice even when strict rules of evidence are not required. It was held that ICC can adopt its own procedure keeping in mind the principles of natural justice.

Case Studies:

1. Jacqueline works with a leading consulting organisation. Within a month of joining the organisation, she was remarked on the way she dresses and was even made fun of by other employees. So, she complained about it to her senior and requested the ICC to hold an inquiry. During the inquiry, the respondent failed to appear for 5 consecutive hearings even after the notice. So, ICC passed an ex-parte decree favouring Jacqueline.
2. Geeta was appointed as a supervisor in the production division at ABC Ltd. She has to report daily to the manager of the production division, Mr. Amar. Mr. Amar always tries to make sexual contact. One day Geeta pushed him while he tries to make sexual contact. She complained about it to the CEO of the company who constituted ICC to hold an inquiry. After taking into account the evidence and witnesses presented and after the process of cross-examination, Amar was found guilty.
3. Ananya works in an NGO as a volunteer. However, during her course of employment, she alleged that she was harassed by one of the seniors, Mr. Amreesh having a reputation in the market. She complained about it to the employer who considering it a serious issue forward the matter to ICC. However, Ananya failed to submit the documents or evidences supporting her allegations within the given time. So, the ICC rejected her complaint.
4. Amna works in the manufacturing industry. She has to get in touch with the dealers, contractors, agents. She got transferred from Punjab to Delhi. There she met Shashank, a contractor for the company. She has to deal with him. Shashank always tries to take advantage of her, Amna when one day slapped him. He complained to the supervisor for her misbehaviour with him and that he is going to break the entire tie-ups with the company. Amna when asked about this by her supervisor she told him that he tried to harass her sexually. She requested the inquiry proceedings to be conducted by ICC. 

Critical Analysis:

The procedure of inquiry by ICC is based on natural justice it means no party shall be denied the opportunity to protect themselves, hence enlightening the principle of justice for all and all are equal before the law. Also, the procedure laid down is simple and no ambiguity is there. Hence, making it easier for both parties to adhere to the procedure. However, the ICC can adapt its own procedure but the only condition is that principles of natural justice must be followed.

FAQ’s:

1. What are the principles of natural justice?
2.  No one should be made a judge in his own case, or the rule against bias.
3. Hear the other party, or the rule of fair hearing, or the rule that no one should be condemned unheard.
4. What is ex-parte order?

Ex-parte order is the verdict given by considering only one party evidences and arguments.

• Interim relief:

Law: As per section 12 of the posh act, the woman in writing can ask the ICC for interim relief. And the ICC after considering such request recommends the employer to take the following actions:

1. Transfer or move the respondent or the woman to any other place,
2. Grant supplementary leave of upto 3 months to the women which she is entitled to,
3. Grant any other aid as may be prescribed.

Description: However, as per the rules prescribed the ICC can even recommend the employer to restrict the respondent from accounting the performance of the woman or writing her confidential report and the same is assigned to other officers. And in the instance of educational institutions restrict the respondent from administering any academic activity of woman.

Judgement:

In Confidential v Indian Institute of Corporate Affairs, Delhi High Court held that the petitioner has the right to approach IC to seek immediate protection and IC can also grant interim relief if it deems fit.

Case Studies: 

1. Neha is a librarian in the law department of a university enrolled on a part-time basis. During the tenure of her employment, she was harassed by Gaurav one of the professors of the college. So, she complained about it to the Dean of the department and asked the dean to set up an Internal Complaint Committee for inquiry purposes. During the inquiry proceedings, she requested ICC in writing to grant her leave for 3 months. ICC approved her request.
2. Supriya is a surgeon and also delivers a lecture in the College of Bikaner Hospital. She alleged that her senior surgeon under whom she is placed harassed her by calling her for assistance even if assistance is not required, calling her at night. She didn’t feel safe at the workplace and always worked in fear. She approached the head of the hospital and she demanded the inquiry by CCI. During the inquiry process, she demanded to change her reporting authority, so that she can work freely.
3. Surbhi alleged that she has been harassed by one of her colleagues, Shyam who even mocked her in front of other employees. Due to which other employees also started to make fun of her. She gave a resignation letter to her boss who asked for a reason. She told him everything. Her boss saw this as a case of sexual harassment and informed her about the role of ICC. She requested to conduct an inquiry, by ICC and during the process of inquiry she requested to transfer her at some other place. As per the rule she is entitled to get a transfer so the request of Surbhi was approved.
4. Shivakshi was on her probation period. Mr. Franklin was the supervisor and has to report on daily basis about her performance. One day he asked her for sexual favours in return he will formulate a good report which she denied. Also, he keeps on approaching her but she refused. She was shown as the poor performer in the report and was given 1-month warning to improve her performance. She complained about it to her boss and demanded an inquiry by ICC. Meanwhile, during the process of inquiry, she requested that the reporting task of the respondent must be given to some other officer for fair and just treatment.

Critical Analysis:

Interim relief measures provided by the Prevention of Sexual Harassment Act, is a method of safeguarding the aggrieved party from discrimination during the inquiry.  However, this provision helps in preventing ongoing sexual harassment ever after inquiry. This section acts as a shield for the woman that she is safe from such harassment and will not suffer from it anymore.

FAQ’s:

1. Did salary gets deducted on the grant of supplementary leave?

No, the salary remains the same.

• Can interim relief be demanded before the inquiry process starts?

No, it is only requested during the inquiry process.

• What do you mean by other aids?

Other aids here denotes any aid that has been given in the service rule.

• Punishment for false and malicious complaints:

Law: Section 14 of the posh act, 2013 provides that after the completion of the inquiry ICC concludes that evidence is false or malicious and the complainant had made the complaint knowing the allegations to be false then it may recommend the employer to take action against the woman or complainant as prescribed in the service rule.

Description: However, generally the following recommendations can be made:

1. The woman or complainant may be asked to give a written apology,
2. The woman or Complainant may be given a warning,
3. The woman or complainant may be reprimanded or censured,
4. The promotion of woman or complainant may be withheld,
5. The pay rise or increments which the woman or complainant is entitled may be withheld,
6. The woman or Complainant can be terminated from service,
7. The woman or complainant has to undergo a counselling session or carry out community service.

Judgement:

In Dr. Punita K. Sodhi v. Union of India the ICC ordered that the complaint by the petitioner frivolous. However, Delhi Court held that the approach of the committee was narrow and limited. And the committee failed to analyse the context in which complaint was made.

In K.G Nidhi v. Union ofIndia, the Madras High Court dismissed the petition because of its malicious and frivolous nature.

Case Studies:

1. Malini works in an MNC under the finance department. She has been remarked poor on her performance report. She is negligent towards her work. One day her senior, Shyam, called her in and asked for her poor performance and gave her a letter of devotion. After few days she charged him of sexually harassing her and giving remarks on her clothes. ICC was set up to inquire into the matter. After inquiry, it was found that the allegations and the evidences presented against Shyam were false. ICC recommended the termination of Malini.
2. Shreya works in a transportation company. One day she got into chaos with one of the workers. The next day she filed a complainant of sexual harassment against him. However, the inquiry concludes that the allegations were false. So, as per the service rules applicable, she has to compensate the worker for false charges.
3. Mitali works in a travel company and she was not promoted but Shiva who was subordinate to her got the promotion. So. She filed a complaint against her boss that he harassed her causing her depression. In the report, it was found that Mitali filed a frivolous complaint against Shiva and was asked to give a written apology to her boss.
4. Shipra was a doctor and had also published some of the research papers. However, she used the wrong designation in the publication of the papers. On being asked she didn’t answer to her superior. She filed a complaint of sexual harassment against him. The ICC found the complainant to be false in nature she was ordered to resign.  

Critical Analysis:

This provision protects the interest of the respondent in case the allegations were false. However, the actions taken cannot recompensate the losses respondent has suffered plus the defamation he has to face. But, this provision in the act acts as a punitive measure for those who wish to take advantage of their rights.

FAQ”S:

1. Does the woman has to compensate for the damages the respondent has suffered?

Yes, If there is a provision of compensation in the service rule.

1. What is the time period of registering a complaint?

It shall be filed within 3 months of the date of the incident.

1. What if the findings of the ICC show that the complaint is frivolous in nature but in reality, it is not?

Then, in that case, there is a provision of appeal. Either party can appeal within 90 days of such order in the court of law.