Time Bound Action on Sexual Harassment Inquiry Report

Article

Time Bound Action on Sexual Harassment Inquiry Report

 

The Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 provides for taking action in sixty days, after receipt of enquiry report. The internal committee /local committee shall provide a copy of the report of its findings to the employer or to the District Officer, within a period of ten days from the date of completion of the inquiry. A copy of the report shall also be given to the aggrieved woman and the respondents. 

The enquiry report may broadly conclude that the charges have been proved or not proved. In case the committee arrives at the conclusion that the allegations against the respondent have not been proved, it shall recommend to the employer or the District Officer that no action is required to be taken in the matter. 

Where the committee arrives at the conclusion that the allegations against the respondent have been proved it shall recommend to the employer or the District Officer, as the case may be: 

(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;

(ii) 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 heirs, as determined, in accordance with the provisions of Section 15: 

Where the employer is unable to make such deduction from the salary of the respondent due to factors like absence from duty or cessation of employment it may direct the respondent to pay such sum to the aggrieved woman.  

In case the respondent fails to pay the sum the internal committee or the local committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer. Section 13 of the Act reads as under: 

“13. Inquiry report.—(1) On the completion of an inquiry under this Act, the Internal Committee or the Local Committee, as the case may be, shall provide a report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry and such report be made available to the concerned parties.

(2) Where the Internal Committee or the Local Committee, as the case may be, arrives at the conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer and the District Officer that no action is required to be taken in the matter.

(3) Where the Internal Committee or the Local Committee, as the case may be, 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—

(i) to take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent or where no such service rules have been made, in such manner as may be prescribed;

(ii) to deduct, notwithstanding anything in the service rules applicable to the respondent, 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 heirs, as it may determine, in accordance with the provisions of section 15:

Provided that in case the employer is unable to make such deduction from the salary of the respondent due to his being absent from duty or cessation of employment it may direct to the respondent to pay such sum to the aggrieved woman:”

Provided further that in case the respondent fails to pay the sum referred to in clause (ii), the Internal Committee or as, the case may be, the Local Committee may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.

(4) The employer or the District Officer shall act upon the recommendation within sixty days of its receipt by him.

Action under CCS (CCA) Rule 15: The cases of respondents covered under CCS (CCA) Rule may be dealt with by the disciplinary authority as per provisions of these rules. The CCS (CCA) Rule 15 provides as under:

 

(1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14, as far as may be.

(2) The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority, a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of inquiring authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant.

(2A) The disciplinary authority shall consider the representation, if any, submitted by the Government servant and record its findings before proceeding further in the matter as specified in sub-rules (3) and (4).

(3) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in clauses (i) to (iv) of rule 11 should be imposed on the Government servant, it shall, notwithstanding anything contained in rule 16, make an order imposing such penalty:

Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the government servant.

(4) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses (v) to (ix) of rule 11 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the government servant any opportunity of making representation on the penalty proposed to be imposed:

Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government servant.

Orders of Central Information Commission: The Commission has delivered the following decisions with regard to supply of information/ report to victims and aggrieved:

Proceedings & findings must be made available to the victim, voluntarily

In the case of Reshma M G vs All India Radio[1] the CIC ruled that while dealing with any incidence of sexual harassment, the information relating to the proceedings & findings of ICC, must be voluntarily made available to the victim.

CPIO fined for Denial of documents which he was entitled[2] 

In this case, the appellant who was facing an enquiry of alleged sexual harassment sought certified copies of some documents to substantiate his defence. However, the public authority denied information under Section 16 of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 and the CPIO denied information under Section 8(1)(d) and (g) of RTI Act. 

The CIC held that the documents should have been shared with the appellant who is an officer accused of charge of sexual harassment during the inquiry itself. Section 11 and Section 13 of SHW Act, mandated that findings of the committee and inquiry report should be given to the concerned parties. 

The Commission held that the accused was entitled to get all information and opportunity to defend himself and prove that allegation was false. The charge of sexual harassment is a serious allegation which if falsely made and proved by suppression of information to the accused, it can ruin the career of the accused, cause permanent and irreparable damage to the reputation and also disturb his domestic life affecting his relations with his wife and children. 

The Commission further held that it is the human right of the appellant in his capacity as a citizen and accused under RTI Act and under the principles of criminal justice, to all the related information to defend himself in a penal proceedings. 

That the elementary principle of Natural Justice, audi alteram partem or right to be heard which include right to cross-examine and right to legal representation form the fundamental structure of right available to the accused in the Indian criminal justice system. 

The CIC noted that the CPIO had simply ignored all these mandatory provisions of RTI Act, Code and Criminal Justice. By denying the information the appellant was not only harassed by the public authority, but also by the CPIO. While public authority denied him the documents which he was entitled under SHW Act of 2013, the CPIO denied them under RTI Act besides wrongfully invoking Section 8(1) (d) and (g). 

The Commission held that by denying the information the appellant was not only harassed by the public authority, but also by the CPIO, and that while public authority denied him the documents which he was entitled under SHW Act of 2013, the CPIO denied them under RTI Act besides wrongfully invoking Section 8(1) (d) and (g). The Commission concluded that denial of information to the appellant was without any reasonable cause, and hence liable for maximum penalty of Rs. 25,000 under section 20 of RTI Act. The Commission also found it to be a fit case to recommend the public authority to initiate disciplinary action against the CPIO in view of the analysis, in the above-referred decision.  

Provide copy of inquiry report about sexual harassment to victims in 48 hours[3] 

The applicant sought a copy of preliminary inquiry report which was denied to her saying that the inquiry was going on and citing a provision of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

 

During her second appeal the Information Commission held that as per the sexual harassment prevention law, the information pertaining to sexual harassment at the workplace shall not be subject to the provisions of the Right to Information Act, except to the extent that it should not be disclosed to the public, press and media in any manner. The Information Commissioner held that it was a “deliberate” misreading of the provision of the law to harass the complainant and deny her the right to information about action taken on her own complaint.

 

He observed that merely because the process of investigation or prosecution of offenders is continuing, the bar stipulated under Section 8(1) (h) of the RTI Act cannot be invoked. It held that “It is impossible to imagine that giving a copy of preliminary report of inquiry will impede further proceedings, investigation or inquiry.” Section 8(1) (h) of the RTI Act exempts disclosure of such information which would impede the process of investigation or apprehension or prosecution of offenders. The commissioner said that “threat to dignity of women at the workplace” is nothing less than a threat to her life and liberty in view of the seriousness of mental or physical harassment she undergoes.

 

The Central Information Commission has therefore ruled that information on sexual harassment cases should be provided to the victims within 48 hours under the Right to Information Act, as it pertains to their “life and liberty”. It observed that “Information sought by the appellant in sexual harassment cases has to be classified as information related to life and liberty, as both of these rights are threatened by sexual harassment.

 

The public authority should have provided a copy of the inquiry report considering this as concerning life and liberty of the appellant within 10 days as per Section 13 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, if not in 48 hours, or at least in 30 days as prescribed under section 7(1) of RTI Act,” he said.

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[1] Reshma M G v. All India Radio in File No.: CIC/AIRCL/A/2017/101742/SD, Date of Decision: 04/01/2018

[2] Balkrishna Porwal Vs. PIO, Department of Posts

[3] Applicant vs Council of Scientific and Industrial Research