It’s been five years since the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and Rules (Act & Rules) came into force.
But the key question that remains is: Are the organisations, in general, and members of the internal committee (IC), in particular, equipped to handle complaints of sexual harassment of women in the workplace?
The law mandated to conduct the inquiry follows the Principle of Natural Justice viz “Audi Alteram Partem” (hear the other side before deciding the matter) and “Nemo Debet Esse Judex Impropria Causa” (no man can be a judge in his own cause).
IC’s Limitations in Dealing With Sexual Harassment
I have had the opportunity to train hundreds of corporate employees on this topic. In one of such training session, a participant, who was an IC member, shared the experience of an aggrieved woman.
The woman had reported to the IC that she was being allegedly threatened with dire consequences by the alleged perpetrator if she participated in the inquiry. Hence, she had showed reluctance towards a face-to-face cross-examination.
The IC was in a dilemma over how to conduct the inquiry – by not allowing parties to cross-examine each other. However, various judgments of the Supreme Court (SC) and high courts showed a way out.
In Hira Nath Mishra & others Vs The Principal, Rajendra Medical College, the chief contention by appellants was that the rules of natural justice were not followed by the IC.
The SC, however, was satisfied as the IC had called the victims privately to record their statements. Thereafter, the students named by them were called and the complaint was explained to them. Following this, the written charge was handed over and they were asked to state whatever they had to say in writing.
Several such judgments have been passed by various courts on similar issues raised by aggrieved parties.
Another participant, during a training session, had shared that the IC, instead of recording the statement of the respondent by reducing it to writing simultaneously during the proceedings, jotted down the responses and asked him to appear before the IC the next day to sign the statement.
He, however, refused to sign the statement the next day. Members with legal experience could have avoided this situation by taking the signatures at the time of writing the statement.
Also, not taking signatures at the time of writing leaves scope for suspicion and raises questions on the veracity of the statement.
Other key challenges faced by the IC while handling a complaint are: appreciation of the evidence, conclusion of inquiry and writing a report flawlessly.
In Ashok Kumar Singh Vs University of Delhi & others, the petitioner challenged the reports issued by the IC on two counts. The first is that the report only gave a prima facie conclusion, with it not giving a definite conclusion and holding the charges against the petitioner which were yet to be proved – aspects which are very much required under Section 13(3) of the Act.
The second count is that the petitioner was not allowed to submit evidence in support of his defense and an opportunity to cross-examine was not given.
The HC held that the reports fell short of the requirements of subsection (3) of Section 13 of the Act as there was no definitive conclusion of the petitioner being held guilty and also, that there was no finding that the charges against the petitioner were proved. The court, therefore, set aside the order.
Limitations Of The Act
- The Act prescribes removal of an IC member if he/she is found to have indulged in contravening a confidentiality provision; or has been convicted for an offense or inquiry into an offense under any law pending against him/her; or abused his position to render his continuance in office; or is prejudicial to the public interest.
However, the Act does not explicitly mention removal of IC members if there is any conflict of interest in a form of personal, pecuniary or subject matter bias. - Organisations with 10 or more employees have an obligation to constitute an IC with minimum four members, including at least 50 percent women. However, it does consider a scenario in which the organisation (without a parent or subsidiary company) has all male members.
One of the MNCs, with whom I had dealt with, had faced this challenge as it had only male members.
The district officer, in an RTI reply, had stated that the company has to either take the assistance of the labour department to constitute an IC or approach the district officer or Local Committee for Redressal.
- The definition of workplace is quite wide, apart from the office premises, it also covers any place visited by the employees arising out of or during employment – including transportation provided by the employer.
But what happens in a scenario in which a female and male employee, working for the same organisation, visit or travel in their individual capacity after office hours, and the female employee experiences sexual harassment?
In, “The management of Hirsch Watch Straps (P) Ltd” in the HC of Judicature at Madras, the harasser argued that the incident of sexual harassment had taken place outside the factory premises and outside duty hours.
The HC upheld the decision of the Labour Court, stating that the behavior of workman amounted to misconduct in employment within the meaning of the phrase as contained in the standing orders. - The Act does not cover scenarios of online sexual harassment; hence it would be a challenge for the IC to decide if such harassment falls under workplace. For example, in the year 2015, a senior officer from one of the banks faced action for sending a suggestive, sexually explicated message to a female job aspirant via LinkedIn.
The message read: To conduct an inquiry in an effective manner, the stakeholders are required to possess knowledge on laws related to the Constitution, Service, Labor, Civil, Criminal, 2013 Act & Rules and keep themselves abreast with the SC and HC judgments.
(Rajkumar Shriwastav is a Partner at SK Vestigium. This is a personal blog and the views expressed are the author's own. The Quint neither endorses nor is responsible for them.)
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