Centre yet to notify Workplace Harassment Act rules

Chennai: It took nearly 16 years for the Union government to enact legislation as reco­mm­ended by the Supreme Court after the Vishaka case judgment.

In the meantime, the victims of sexual haras­sm­ent at the workplace had to make do with the guidelines suggested by the apex court to tackle the problem as the court decreed that the guideli­nes were binding and en­­forceable in law until suitable legislation was enacted.

Now, even more than seven months after the President gave his assent— the Presidential signature was obtained on Ap­ril 23, 2013— and the Se­xual Harassment of Wo­men at Workplace (Prev­ention, Prohibition and Redressal) Act, 2013 was notified, the Central government is yet to finalise and notify the rules for the effective implementation of the Act.

The number of workingwomen has increased ma­nifold over the years. Sex­ual harassment results in violation of the fundamental rights of a woman to equality under Article 14 and 15  of the Consti­tution of India and her right to life and to live wi­th dignity under Article 21 of the  Consti­tution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe enviro­n­m­ent free from sexual har­a­ssment.

Women and Child Devel­opment Minister Krishna Tirath told the media recently that the final draft of the rules has been referred to the ministry of labour and emp­lo­yment for examination after law ministry officials, vetting it, raised an issue with an appellate structure. She assured that it would be notified soon.

Sathia Chandran, an activist lawyer, says, “Th­o­ugh the Sexual Hara­ssment of Women at Wo­rkplace (Prevention, Pro­h­ibition and Redr­essal) Act, 2013 was passed and notified in  April 2013, no rules have been framed by the government of In­dia for implementation of the  provisions of the Act. Hence, unless the rules are farmed and notified at the earliest, the Act will not serve any purpose.”

Right of Children to Free and Compulsory Ed­u­cation Act was passed by Parliament in 2009. Ho­w­ever, the Centre framed the rules only in April 2010.

The state government framed the draft rules but not finalised it.

“Ther­efore, I filed a public interest litigation in the Madras high court, which had June 29, 2011 directed the state government to finalise and notify the rules. Thereafter, the rul­es were notified. Simi­larly, in this case also, if the rules are not notified, the Act will not take off and the victims have to suffer in silence,” added Sathia Chandran.

As per Section 29 of the Act, the Central government may, by notification in the Official Gazette, make rules for carrying out the provisions of the Act.

Such rules by the government may provide for the matters relating to nomination of members of the internal and local committees, the fees or allowances to be paid to the chairperson and me­m­bers, the person who may make complaint, the manner of inquiry, the powers for making an inquiry, the relief to be recommended by the committee, the manner of action and the manner of appeal, besides organising workshops, awareness programmes for sensitising the employees at the workplace and orientation programmes for the members of the internal committee, the form and time for preparation of annual report by the internal committee and the local committee.

Next: District officer must set up local complaints panel

District officer must set up local complaints panel

Chennai: A lot is being written about the formation of Vishaka co­m­mittees in workplaces for the safety of women against se­x­ual harassment, but a clo­se study of the Sexual Hara­ssment of Women at Wor­kplace (Prevention, Proh­ibi­tion and Redressal) Act, 2013 shows that in the absence of such a committee, local com­mittees could receive compl­aints, enquire into them and make recommendations to the employer or district off­icer for appropriate action.

As per Section 4 of the Act, every employer of a work­place should constitute a committee to be known as the ‘Internal Complaints Com­mittee’.

The committee, cons­isting of a presiding officer, who shall be a woman em­ployed at a senior level at the workplace from amongst the employees, two members from amongst employees pre­fe­rably committed to the cause of women or who have had experience in social work or have legal knowledge, and one member from amongst non-governmental organ­isa­tions or associations comm­itted to the cause of women or a person familiar with iss­u­es relating to sexual hara­ssment.

Where the internal compl­aint committee has not been constituted due to having less than 10 workers or if the complaint is against the em­ployer himself, every district officer shall const­itute a committee to be known as the ‘Local Complaints Com­mi­ttee’ to receive complaints of sexual harassment from such establishments.

As per Section 5 and 6 of the Act, the appropriate gover­nment may notify a district magistrate or additional district magistrate or the collector or the deputy collector as a district officer for every district.

The LCC shall consist of a chairperson to be nominated from amongst the eminent women in the field of social work and committed to the cause of women, one member to be nominated from amo­ngst the women working in block, taluks or tehsils or ward or municipality in the district and two members, of whom at least one shall be a woman, to be nominated fr­om amongst such NGOs or as­s­­ociations committed to the cause of women or a per­son familiar with the issues relating to sexual hara­ssment.

Any aggrieved woman may make, in writing, a complaint of sexual harassment at the workplace to the internal committee, if so constituted, or the local committee, in case it was not constituted, within three months from the date of the incident.

Where the aggrieved woman was 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 the time-bound complaint.

The internal committee or local committee may before initiating an inquiry and at the request of the aggrieved woman take steps to settle the matter between her and the respondent (a person against whom the aggrieved woman has made a complaint thr­ough conciliation).

On the completion of the inquiry, the internal com­mittee or the local committee, should provide a report of its finding to the employer or district officer.

Where the internal or local committee 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 in the matter.

If the committees arrive at the conclusion that the alle­gation against the respondent has been proved, it will recommend to the employer or district officer, to take action in accordance with the provisions of the service rules or where no such rules are made, in such manner as may be prescribed and to de­duct 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 heir.

The internal or local com­mittee arrives at a conclusion that the alleg­ation against the respondent was mali­cious or the aggr­ieved wo­man or any other person ma­king the complaint has made the complaint knowing it to be false or they produce any forged or misleading docu­ment, it may recommend to the employer or district offi­cer action against them.

Next: Nitty gritties of harassment act: Dos, Don'ts

Nitty gritties of harassment act: Dos, Don'ts

Chennai: As per the Act, sexual harassment includes any one or more of the following unwelcome acts or behaviour (whether directly or indirectly): physical contact and adva­n­ces; a demand or request for sexual fa­vours; making sexually coloured rem­a­rks; showing pornography; any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

The following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment: 

(i) implied or explicit promise of preferential tr­eatment in her employment or (ii) im­plied or explicit threat of detrimental tre­atment in her employment or (iii) implied or explicit threat about her present or fu­ture employment status, or (iv) interference with her wo­rk or creating an int­imidating or offensive or hostile work environment for her, or (v) humiliating tr­e­atment likely to aff­ect her health or safety.

During the pendency of the enquiry, on a written request by the aggrieved woman, the internal committee or local committee, as the case may be, may recommend to the employer to (a) transfer the aggrieved woman or the res­pondent (a person against whom the complaint has been made) to any other workplace, or

(b) grant leave to the aggrieved woman up to a period of three months, or

(c) grant such other relief to the aggrieved woman as may be prescribed. The leave granted to the aggrieved woman shall be in addition to the leave she would otherwise be entitled to.

For the purpose of determining the sums to be paid to the aggrieved woman, the in­ternal committee and local committee shall have regard to (i) the mental trauma, pain, suffering and emotional distress caused to the aggrieved woman, (ii) the loss in the ca­reer opportunity due to the incident of se­x­u­al harassment, (iii) medical expenses in­curred by the victim for physical or psych­iatric treatment,

(d) the income and financial status of the person against whom complaint has been made, (e) feasibi­lity of such payment in lump sum or in in­st­alments.