Constitution of Internal Committees by Organised Sector for Attending to Sexual Harassment Complaints
Article
Constitution of Internal Committees by Organised
Sector for Attending to Sexual Harassment Complaints
The Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 provides for constitution of two
types of committees to attend to complaints of sexual harassment at work place
–
a) Internal Committee
for “organised sector”; and
b) Local Committee
for “unorganised sector”.
The unorganised sector in relation to a workplace includes enterprise
owned by individuals or self-employed workers and engaged in the production or
sale of goods or providing service of any kind whatsoever, and where the
enterprise employs workers, the number of such workers is less than ten.
Responsibilities
of Complaints Committee: The complaints committee has to effectively
address sexual harassment complaints at workplace by following the due process
of law and giving each party an opportunity to present its case and a chance to
be heard. The members of the committee must be well versed about the provisions
of the Act, Rules, and Regulations for conducting a fair enquiry. The members
should keep themselves abreast with latest judgements of various courts,
decisions of Central Information Commission, amendments in laws and rules, etc.
The committee should ensure that parties are made aware of the process and their
rights and responsibilities under the Act.
Constitution of
Internal Committee: All employers of organised
sector are required to constitute a committee to be known as the "Internal
Committee" in compliance with section 4 of the Act for attending to sexual
harassment complaints. The committee should be constituted in writing. The
internal committee shall be constituted at all administrative units or offices,
including the workplace as are located at different places or divisional or
sub-divisional level. Failure to set up such
a committee is a non-cognizable offence.
Deemed Committee for Members of All India Services: The complaints committee established in each
Ministry or Department or Office for inquiring into sexual harassment
complaints, shall be deemed to be the inquiring authority appointed by the
disciplinary authority for the purpose of these rules in respect of members of
All India Services[1].The complaints committee
shall hold, if separate procedure has not been made for the complaints
committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable, in accordance with
the procedure laid down in these rules.
Constitution of Committee: The committee
shall be headed by a Presiding Officer and shall have at least two Members from
amongst employees preferably committed to the cause of women or who have had
experience in social work or have legal knowledge. It should have 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 fifty per cent of the total nominated members shall be
women. 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.
Tenure of office: The Presiding
Officer and every Member of the internal committee shall hold office for such
period as mentioned in his nomination letter but it shall not exceed three
years, from the date of their nomination. Modifications in the constitution of
the committee should be made promptly, when due.
Remuneration: The Members appointed from amongst the non-governmental organisations or
associations shall be paid such fees or allowances for holding the proceedings
of the internal committee, by the employer, as are prescribed under the Rules.
Removal of Presiding Officer or
Member: The Presiding Officer or any Member of the internal committee can be
removed on any of the following grounds-
· contravenes the provisions
relating to prohibition of publication or making known the contents of
complaint and enquiry proceedings ; or
· has been convicted for an offence
or an inquiry into an offence under any law for the time being in force is
pending against him; or
· he has been found guilty in any
disciplinary proceedings or a disciplinary proceeding is pending against him;
or
· has so abused his position as to
render his continuance in office prejudicial to the public interest.
Section 4
of the Act reads as under:
“4.
Constitution of Internal Committee.— (1)
Every employer of a workplace shall, by an order in writing, constitute a
Committee to be known as the “Internal Complaints Committee”:
Provided
that where the offices or administrative units of the workplace are located at
different places or divisional or sub-divisional level, the Internal Committee
shall be constituted at all administrative units or offices.
(2)
The Internal Committees shall consist of the following members to be nominated
by the employer, namely: —
(a)
a Presiding Officer who shall be a woman employed at a 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 referred to in sub-section (1):
Provided
further that in case the other offices or administrative units of the workplace
do not 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;
(b)
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;
(c)
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:
Provided
that at least one-half of the total Members so nominated shall be women.
(3)
The Presiding Officer and every Member of the Internal Committee shall hold
office for such period, not exceeding three years, from the date of their
nomination as may be specified by the employer.
(4)
The Member appointed from amongst the non-governmental organisations or
associations shall be paid such fees or allowances for holding the proceedings
of the Internal Committee, by the employer, as may be prescribed.
(5)
Where the Presiding Officer or any Member of the Internal Committee, —
(a)
contravenes the provisions of section 16; or
(b)
has been convicted for an offence or an inquiry into an offence under any law
for the time being in force is pending against him; or
(c)
he has been found guilty in any disciplinary proceedings or a disciplinary
proceeding is pending against him; or
(d)
has so abused his position as to render his continuance in office prejudicial
to the public interest, such Presiding Officer or Member, as the case may be,
shall be removed from the Committee and the vacancy so created or any casual
vacancy shall be filled by fresh nomination in accordance with the provisions
of this section.
Knowledge,
Skills, Training: Dealing with workplace
sexual harassment complaints is often complex. Hence complaints committee/s
must possess critical skills/capacity to effectively carry out their role. That
includes a sound grasp of the Act, Vishaka Guidelines, applicable Service
Rules, relevant laws and an understanding of workplace sexual harassment and
related issues. Complaints committee skills must include an ability to
synthesize information i.e. relevant documents, the law and interviews.
They should also be able to communicate effectively, write clearly, listen actively and conduct interviews. They should be competent at showing empathy, being impartial and being thorough. They should be able to identify sexual harassment and its impact.
Complaints committee is required to be trained in both skill and capacity to carry out a fair and informed inquiry into a
complaint of workplace sexual harassment. In absence of such training will lead
to unequal and unfair results, which can cost employers, employees,
complainants as well as respondents.
Sexual Harassment Rules: The Government
of India has notified Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 for proper
implementation of the Act and regulating fees etc.
Rule 3 lays down the entitlement of allowances payable to Members appointed from amongst nongovernment organisations. They shall be entitled to an allowance of two hundred rupees per day for holding the proceedings of the internal committee and also reimbursement of travel cost incurred in travelling by train in three tier air condition or air conditioned bus and auto rickshaw or taxi, or the actual amount spent by him on travel, whichever is less.
Rule 4 lays down criteria for appointment of persons familiar with the issues relating to sexual
harassment etc. For the purpose of this Act
person familiar with the issues
relating to sexual harassment shall be a person who has expertise on issues
relating to sexual harassment. He or she may be a social worker with at least
five years’ experience in the field of social work which leads to creation of
societal conditions favourable towards empowerment of women and in particular
in addressing workplace sexual harassment. A person who is familiar with
labour, service, civil or criminal law can also be appointed as a Member.
Bombay High Court
Judgement: The Bombay High Court ruled
that it would not interfere with an order of punishment passed by the Internal
Complaints Committee in relation to a sexual harassment complaint, unless the
order is shockingly disproportionate. The Court referred to its decision in Om
Kumar v Union of India and reaffirmed the principles of judicial restraint to be exercised
by courts under Article 226 of the Constitution. The Court held that unless the
Order is shockingly disproportionate to the act of the delinquent employee, it
will be circumspect in interfering with the Order[2].
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