Initiating Sexual Harassment Enquiry & Determination of Compensation
Article
Initiating Sexual Harassment Enquiry & Determination of Compensation
In cases where no settlement is reached then the procedure for conducting an enquiry by the internal committees or local committees shall be followed. Section 15 provides that in the case of organised sector enquiry may be initiated in accordance with the provisions of the service rules applicable to the respondent, if such rules exist. Most of the government servants’ stand covered under CCS (CCA) Rules or some other identical rules, applicable to them. However, where no such rules exist the enquiry may be held in such manner as may be prescribed.
In the case of a domestic worker and others covered under un-organised sector, the local committee shall, if prima facie case exists, send the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code (45 of 1860), and any other relevant provisions of the said Code where applicable. Section 509 of the IPC reads as under:
“509. Word, gesture or act intended to
insult the modesty of a woman.--Whoever, intending to insult the modesty of
any woman, utters any word, makes any sound or gesture, or exhibits any object,
intending that such word or sound shall be heard, or that such gesture or
object shall be seen, by such woman, or intrudes upon the privacy of such
woman, shall be punished with simple imprisonment for a term which may extend
to one year, or with fine, or with both.”
Where both the
parties are employees, both of them shall be given an opportunity of being
heard and a copy of the findings shall be made available to both the parties
enabling them to make representation against the findings before the committee.
In case the respondent is convicted of the offence then the court may pass orders for payment of such sums as it may consider appropriate, to the aggrieved woman by the respondent.
Time Period for completion of
enquiry: The inquiry shall be completed
within a period of one month as far as possible subject to a maximum of ninety*
days. [*DoPT OM
No.11013/7/2016-Estt.A-III dated the 22nd December, 2016]
Punishment under IPC more
stringent: Cases registered under 354 A carry a punishment up to three years in prison, and a
fine or both; while under section 509 up to one year and fine or both. It is up to the victim whether to reconcile
or opt for internal inquiry, which carries a milder punishment. She has also
the option to lodge an FIR. Similarly, FIR can also be filed in respect of
computer related sexual offences, under I T Act, 2008 which provides for
imprisonment and fine.
In case of FIR
victim may have to go through strenuous procedure which entail humiliation,
spending lot of time, energy and money. In such cases the matter does not end
up in the lower court, as both the parties have a right to appeal in higher
courts leading up to the Supreme Court.
Legal
recourse, however, comes with its risk and limitations. Its outreach and
enforcement in the context of poverty, illiteracy and unorganized labour in
many parts of the India is a challenge for post-colonial legal systems which is
distant and inaccessible to the poor generally, and women at particular. In
case of women’s issues, the law, more often than not, reproduces and reinforces
dominant gender stereotypes of the ‘good’ and ‘bad’ woman, shifting scrutiny
upon the victim, her behaviour, morality, dress and so on, rather than the
harasser, the workplace code of conduct, and employer responsibility. It
further causes harassment of the harassed/ victim[1]
Cognizance
of offence by courts: No court inferior to that of a Metropolitan Magistrate
or a Judicial Magistrate of the first class shall try any offence punishable
under this Act. The offence committed under this Act shall be non-cognizable. Section
27 reads as under:
27.
Cognizance of offence by courts.—(1) No
court shall take cognizance of any offence punishable under this Act or any
rules made thereunder, save on a complaint made by the aggrieved woman or any
person authorised by the Internal Committee or Local Committee in this behalf.
(2)
No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate
of the first class shall try any offence punishable under this Act.
(3) Every offence under this Act shall be non-cognizable.
Grant of Compensation by the Court: On conviction
of the offender, the court may order payment of such
sums as it may consider appropriate, to the aggrieved woman by the respondent,
having regard to the provisions of section 15 of the Act.
Code of Civil Procedure Powers: For the purpose of making an inquiry the internal committee or the Local Committee shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit in respect of such as summoning and enforcing the attendance of any person and examining him on oath; requiring the discovery and production of documents; and any other matter which may be prescribed.
Section 11 of the Act reads as under:
“11.
Inquiry into complaint.— (1) Subject to the provisions
of section 10, the Internal Committee or the Local Committee, as the case may
be, shall, where the respondent is an employee, proceed to make inquiry into
the complaint in accordance with the provisions of the service rules applicable
to the respondent and where no such rules exist, in such manner as may be
prescribed or in case of a domestic worker, the Local Committee shall, if prima
facie case exist, forward the complaint to the police, within a period of
seven days for registering the case under section 509 of the Indian Penal Code
(45 of 1860), and any other relevant provisions of the said Code where
applicable:
Provided
that where the aggrieved woman informs the Internal Committee or the Local
Committee, as the case may be, that any term or condition of the settlement
arrived at under sub-section (2) of section 10 has not been complied
with by the respondent, the Internal Committee or the Local Committee shall
proceed to make an inquiry into the complaint or, as the case may be, forward
the complaint to the police:
Provided
further that where both the parties are employees, the parties shall, during
the course of inquiry, be given an opportunity of being heard and a copy of the
findings shall be made available to both the parties enabling them to make
representation against the findings before the Committee.
(2)
Notwithstanding anything contained in section 509 of the Indian Penal Code (45
of 1860), the court may, when the respondent is convicted of the offence, order
payment of such sums as it may consider appropriate, to the aggrieved woman by
the respondent, having regard to the provisions of section 15.
(3)
For the purpose of making an inquiry under sub-section (1), the
Internal Committee or the Local Committee, as the case may be, shall have the
same powers as are vested in a civil court the Code of Civil Procedure, 1908 (5
of 1908) when trying a suit in respect of the following matters, namely:—
(a)
summoning and enforcing the attendance of any person and examining him on oath;
(b)
requiring the discovery and production of documents; and
(c)
any other matter which may be prescribed.
(4) The inquiry under sub-section (1) shall be completed
within a period of ninety days.”
Use of POSCO Act: In most of dwelling units and residential places children below 18
years are employed, in violation of labour laws. In such cases the Inquiry
Committee or Local Committee may recommend filing of case under POSCO Act,
where the offence has been committed against children below 18 years,
irrespective of their gender, on the date when offence was committed. In such cases
complaint may also be lodged with the Labour Department for violation of labour
laws.
Rules for inquiry into complaint: Rule 7 and 9 of the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Rules, 2013 provide as under:
7.
Manner of inquiry into complaint. - (1)
Subject to the provisions of section 11, at the time of filing the complaint,
the complainant shall submit to the Complaints Committee, six copies of the
complaint along with supporting documents and the names and addresses of the
witnesses.
(2)
On receipt of the complaint, the Complaints Committee shall send one of the
copies received from the aggrieved woman under sub-rule (1) to the respondent
within a period of seven working days.
(3)
The respondent shall file his reply to the complaint along with his list of
documents, and names and addresses of witnesses, within a period not exceeding
ten working days from the date of receipt of the documents specified under
sub-rule (1).
(4)
The Complaints Committee shall make inquiry into the complaint in accordance
with the principles of natural justice.
(5)
The Complaints Committee shall have the right to terminate the inquiry
proceedings or to give an ex-parte decision on the complaint, if the
complainant or respondent fails, without sufficient cause, to present herself
or himself for three consecutive hearings convened by the Chairperson or
Presiding Officer, as the case may be:
Provided
that such termination or ex-parte order may not be passed without giving a
notice in writing, fifteen days in advance, to the party concerned.
(6)
The parties shall not be allowed to bring in any legal practitioner to
represent them in their case at any stage of the proceedings before the
Complaints Committee.
(7)
In conducting the inquiry, a minimum of three Members of the Complaints
Committee including the Presiding Officer or the Chairperson, as the case may
be, shall be present.
9.
Manner of taking action for sexual harassment.- Except
in cases where service rules exist, where the Complaints Committee arrives at the
conclusion that the allegation against the respondent has been proved, it shall
recommend to the employer or the District Officer, as the case may be, to take
any action including a written apology, warning, reprimand or censure,
withholding of promotion, withholding of pay rise or increments, terminating
the respondent from service or undergoing a counselling session or carrying out
community service.
Determination
of compensation: The Act provides for payment of cash compensation,
as one of the punishments. The internal committee or the local committee, as
the case may be, shall have regard to the following factors for the purpose of
determining the sums to be paid to the aggrieved woman for the purpose to
determine the sums to be paid to the aggrieved woman-
a. the mental
trauma, pain, suffering and emotional distress caused to the aggrieved woman;
b. the loss in the
career opportunity due to the incident of sexual harassment;
c. medical
expenses incurred by the victim for physical or psychiatric treatment;
d. the income and
financial status of the respondent;
e. feasibility of
such payment in lump sum or in instalment
The first two criterions are subjective in nature. The inquiry committee or external committee shall have to collect requisite authentic information to examine the matter and determine the compensation in a realistic and logical manner, as far as possible. The committee shall have to take into account all such factors in a judicious manner and arrive at a conclusion by giving self-speaking orders, justifying their conclusion with cogent reasons. Section 15 reads as under:
“15.
Determination of compensation.—For the purpose of
determining the sums to be paid to the aggrieved woman under clause (ii)
of sub-section (3) of section 13, the Internal Committee or the Local
Committee, as the case may be, shall have regard to—
(a)
the mental trauma, pain, suffering and emotional distress caused to the
aggrieved woman;
(b)
the loss in the career opportunity due to the incident of sexual harassment;
(c)
medical expenses incurred by the victim for physical or psychiatric treatment;
(d)
the income and financial status of the respondent;
(e) feasibility of such payment in lump sum or in instalments.”
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