Appeal Regarding Sexual Harassment Inquiry Report
Article
Appeal Regarding Sexual Harassment Inquiry Report
Any person aggrieved from the recommendations made by the internal
committee or the local committee; or due to non-implementation of the
recommendations of these committees, may prefer an appeal to the court or
tribunal in accordance with the provisions of the service rules applicable to
the victim or respondent. Where no such service rules exist then, without
prejudice to provisions contained in any other law for the time being in force,
the aggrieved person may prefer an appeal in the prescribed manner.
The appeal shall be preferred within a period of ninety days of the
recommendations.
Most of the government servants who are covered under Central
Administrative Tribunal may file an appeal before the Central Administrative Tribunals
(CAT). Likewise, members of other services may prefer an appeal before the concerned
Tribunals, Boards etc. competent to handle their service matters.
Persons of unorganised sector may prefer an appeal to the appellate authority
notified under clause (a) of section 2 of the Industrial Employment (Standing
Orders) Act, 1946. Section 18 of the Act, 2013 and Rule 11 reads as under:
“18. Appeal.—(1)
Any person aggrieved from the recommendations made under sub-section (2)
of section 13 or under clause (i) or clause (ii) of sub-section (3)
of section 13 or sub-section (1) or sub-section (2) of section 14
or section 17 or non-implementation of such recommendations may prefer an
appeal to the court or tribunal in accordance with the provisions of the
service rules applicable to the said person or where no such service rules
exist then, without prejudice to provisions contained in any other law for the
time being in force, the person aggrieved may prefer an appeal in such manner
as may be prescribed.
(2)
The appeal under sub-section (1) shall be preferred within a period of
ninety days of the recommendations.”
Rule
11. Appeal.- Subject to the provisions of
section 18, any person aggrieved from the recommendations made under
sub-section (2) of section 13 or under clauses (i) or clause (ii) of
sub-section (3) of section 13 or sub-section (1) or sub-section (2) of section
14 or section 17 or non-implementation of such recommendations may prefer an appeal
to the appellate authority notified under clause (a) of section 2 of the
Industrial Employment (Standing Orders) Act, 1946 (20 of 1946).
Industrial Employment (Standing Orders) Act: The Industrial Employment (Standing Orders)
Act, 1946 is a central Act, which is applicable to ‘industrial establishments
employing a minimum of hundred workmen. It requires the employers to define and publish conditions of
employment in the form of standing orders. The matters to be included in
Standing Order under the Act are as under:
1. Classification of
workmen, e.g., whether permanent, temporary, apprentices, probationers,
or badlis.
2. Manner of intimating
to workmen periods and hours of work, holidays, pay-days and wage rates.
3. Shift working.
4. Attendance and late
coming.
5. Conditions of,
procedure in applying for, and the authority which may grant, leave and
holidays.
6. Requirement to enter
premises by certain gates, and liability to search.
7. Closing and
re-opening of sections of the industrial establishment, and temporary stoppages
of work and the rights and liabilities of the employer and workmen arising
therefrom.
8. Termination of
employment, and the notice thereof to be given by employer and workmen.
9. Suspension or
dismissal for misconduct, and acts or omissions which constitute misconduct.
10. Means of redress
for workmen against unfair treatment or wrongful exactions by the employer or
his agents or servants.
11. Any other matter which may be prescribed.
The Model Standing Orders prescribed under the Industrial Employment
(Standing Orders) Central Rules, 1996 also details a list of acts constituting
‘misconduct’ including sexual harassment. The Model Standing Orders defines ‘sexual
harassment’ in tune with the definition under the Vishaka Judgment. It also requires
setting up of a complaints committee for redressal of grievances pertaining to
workplace sexual harassment.
Where the complaint committee has not recommended any action against the employee against whom the allegation have been made in a case involving allegations of sexual harassment, the Disciplinary Authority shall supply a copy of the report of the complaint committee which shall consider her representation, if any submitted, before coming to a final conclusion. The representation shall be deemed to be an appeal under section 18(1) of the Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013[1].
The provision of filing appeal provides a fair and
equitable chance to both the parties to pursue their cases to the logical
conclusion and meet the ends of justice.
Penalty for
non-compliance with provisions of Act: The Act
provides for punishment that may be imposed on employer who fails to comply
with the following, with a fine up to fifty thousand rupees in the first
instance which gets enhanced for repeat offences:
a. constitute an
internal committee as per sub-section (1) of section 4;
b.
take action under sections 13, 14 and 22; relating to inquiry report, punishment
for false or malicious complaint and false evidence and to include information
in annual report;
c. contravenes or
attempts to contravene or abets contravention of other provisions of this Act
or any rules made there under.
If any
employer, after having been previously convicted of an offence punishable under
this Act subsequently commits and is convicted of the same offence, he shall be
liable to twice the punishment imposed on a first conviction. In case a higher
punishment is prescribed under any other law for the time being in force, for
the offence for which the accused is being prosecuted, the court shall take due
cognizance of the same while awarding the punishment.
It can also result in cancellation, of his licence or withdrawal, or non-renewal, or approval, or cancellation of the registration, as the case may be, by the government or local authority required for carrying on his business or activity. Section 26 reads as under:
26. Penalty for
non-compliance with provisions of Act.—(1) Where
the employer fails to—
(a)
constitute an Internal Committee under sub-section (1) of section 4;
(b)
take action under sections 13, 14 and 22; and
(c)
contravenes or attempts to contravene or abets contravention of other
provisions of this Act or any rules made thereunder, he shall be punishable
with fine which may extend to fifty thousand rupees.
(2)
If any employer, after having been previously convicted of an offence
punishable under this Act subsequently commits and is convicted of the same
offence, he shall be liable to—
(i)
twice the punishment, which might have been imposed on a first conviction,
subject to the punishment being maximum provided for the same offence:
Provided
that in case a higher punishment is prescribed under any other law for the time
being in force, for the offence for which the accused is being prosecuted, the
court shall take due cognizance of the same while awarding the punishment;
(ii) cancellation, of his licence or withdrawal, or non-renewal,
or approval, or cancellation of the registration, as the case may be, by the
Government or local authority required for carrying on his business or
activity.
Whether the Witness may be punished by ICC without serving complaint copy and not given any opportunity and imposed penalty. is this correct. pls share and suggest your valuable comments
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