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Sexual Harassment: Complaint and Remedies under the Act

Sexual harassment constitutes a gross violation of the right to equality and dignity of women. Thus, after the enactment of Prevention of Sexual Harassment at Workplace Act, it was made mandatory for all the workplaces to have an Internal Complaint Committee so that, an aggrieved woman can make a complaint to this committee and seek relief.
Written by:
Eunice Tombing
Published on
26-Jun-19

An aggrieved woman has been defined under Section 2 (a) of the Sexual Harassment at Workplace Act: “In relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the Respondent”. This Act provides protection to all women present at a workplace, whether they work there or not.

Example: A doctor’s assistant manhandles a girl visiting the clinic. She has the right to complain against such harassment under this Act.

A workplace covers most public places such as government offices, hospitals etc. Private places such as residences are also considered workplace with respect to the domestic workers.

Example: If a woman employed as a domestic help at a family residence is harassed, she is entitled to protection under this Act.

People who can File a Complaint

Section 9 of this Act tells who all are entitled to file a complaint under this Act. The following people can make a complaint in writing to the ICC [INTERNAL COMPLAINT COMMITTEE][1]:

  • An aggrieved woman on her own

  • An aggrieved woman with the assistance of a member of Internal Complaints Committee

When an aggrieved woman cannot make the complaint herself due to any physical incapacity, mental incapacity or her death, the following people can make a complaint:

  • Legal heir of any aggrieved woman

  • Any person prescribed on behalf of the aggrieved woman

As per RULE 6 of the Sexual Harassment of Women at Workplace (Prohibition, Prevention and Redressal) Rules, 2013:

 

  • Where the aggrieved woman is not able to make a complaint on her own due to her physical incapacity, complaint may be filed by:

  1. Her relative or friend

  2. Her co-worker

  3. An officer of the National Commission for Women or State Commission for Women

  4. Any person who has adequate knowledge of the incident and also has the written consent of the aggrieved woman

  • Where the aggrieved woman is not able to make a complaint due to her mental incapacity, complaint may be filed by:

  1. Her relative or friend

  2. A special educator

  3. A qualified psychiatrist or psychologist

  4. The guardian or authority under whose care she is receiving the treatment or care 

  5. Any person who has adequate knowledge of the incident jointly with her relative or friend or a special educator or qualified psychiatrist or psychologist or guardian or authority under whose care she is receiving treatment or care

  • Where the aggrieved woman for some other reason is not able to make a complaint, a complaint may be filed by any person who has knowledge of the incident provided that person has her written consent

  • Where the aggrieved woman is dead, complaint may be filed by any person who has knowledge of the incident along with the written consent of the legal heir of that woman

Process of Filing a Complaint

The process is given in Chapter IV of the Act but there is no prescribed format for a complaint. A complaint should be filed within 3 MONTHS from the date of the incident. If in case, the harassment was over a period of time and consisted of a series of incidents, then 3 MONTHS has to be calculated from the date of the last occurrence of such incident.

Example: A woman working in a Departmental store is requested sexual favours from her male supervisor. The first incident happened on 4th January 2019, 2nd incident happened on 9th February 2019 and the 3rd incident took place of 10th March 2019. The woman can make a complaint within 3 months from the last occurrence i.e. 10th March 2019.

The complaint should be addressed to the members of the Internal Complaint Committee. It should be written in a simple language and must have all the important details of the incident such as date, time, place, witness etc. The complaint should mention whether the complainant asked the respondent to stop his unwelcome acts. Details of the respondent such as name, designation etc. must be mentioned in the complaint. Finally, it should mention the relief that the complainant seeks from the employer.

Inquiry and Investigation

Inquiry and Investigation is given in Chapter V of the Act. 

When the ICC [INTERNAL COMPLAINT COMMITTEE] investigates a complaint, its powers are equivalent to that of a civil court. The powers are given in Section 11(3):

  • Summoning and enforcing the attendance of any person and examining him on oath

  • Requiring the discovery and production of documents

  • Any other matter which may be prescribed

If in case the Respondent is an employee and prima facie case exists, the complaint has to be forwarded to the police within 7 days. If both the parties are employees, they shall be given an opportunity of being heard during the course of the inquiry. Copy of the findings shall be given to both parties, which enables them to make representation against the findings before the Committee.

During the pendency of an inquiry, if the aggrieved woman requests in writing, the ICC [can recommend the employer to:

  • Transfer the woman or the Respondent to another workplace

  • Grant leave to the aggrieved woman up to 3 months

  • Any other relief

Relief during Pendency of Inquiry

It is given under RULE 8. The complaints committee at the request of the aggrieved woman may recommend to the employer to:

  • Restrain the respondent from reporting on the work performance of the aggrieved woman or writing her confidential report, and assign the same to another officer.

  • Restrain the respondent in case of an educational institution from supervising any academic activity of the aggrieved woman

The ICC can also recommend the employer to take action AGAINST THE COMPLAINANT if it’s found out that the allegation is malicious in nature.

Inquiry shall be completed within a period of 90 days. Upon completion of an inquiry, the ICC [INTERNAL COMPLAINT COMMITTEE] or LCC [LOCAL COMPLAINT COMMITTEE] must file an inquiry report. The copy of this report has to be sent to both parties within 10 days. Where the findings of the inquiry prove the allegation to be true, the ICC may recommend the employer to:

  • Take action for sexual harassment as a misconduct in accordance with the service rules, or

  • Direct the Respondent to pay an appropriate sum to the woman (or legal heir), or by deducting from the salary of the Respondent. In this case, if the respondent fails to pay the sum, the ICC may forward the order for recovery of sum to the concerned District Officer.

Manner of Inquiry into Complaint

It is given under RULE 7. The complainant at the time of filing the complaint shall submit six copies of the same to the Complaints Committee, along with supporting documents and names and addresses of the witnesses.

The Complaints Committee on receipt of the complaint shall send one copy to the respondent within 7 working days. The Respondent shall file his reply along with his list of documents, name and addresses of witnesses, within a period of not exceeding 10 working days from the date of receipt of the documents.

Afterwards, the Committee shall make inquiry in accordance with Principles of Natural Justice[2]. The Committee also has the right to terminate the proceedings or give an ex parte decision, if the complainant or respondent fails to present her or himself for 3 consecutive hearings without sufficient cause, as the case maybe. Such order may not be passed without giving a 15 days’ notice in advance to the concerned party.

Investigation

Investigation into a complaint should be conducted in accordance with the Principles of Natural Justice. In order to ensure this, it is advisable that all organisations formulate a policy to prevent and punish the sexual harassment. It is the duty of the employer to provide assistance in the investigation process carried out by the ICC [INTERNAL COMPLAINT COMMITTEE] or LCC [LOCAL COMPLAINT COMMITTEE]. The Internal Complaints Committee and the Local Complaints Committee can also take interim action during the pendency of any investigation. 

Process Of Conciliation

They can also initiate conciliation between the aggrieved woman and the respondent under certain situations as specified in the Act under Section 10. At the request of the aggrieved woman, the ICC [INTERNAL COMPLAINT COMMITTEE] or LCC [LOCAL COMPLAINT COMMITTEE] before initiating an inquiry under Section 11 may take steps to settle the matter through conciliation. 

Conciliation is an informal method of resolving complaints before the complaint escalates into a formal inquiry. This settlement shall not be on monetary basis. 

If a settlement is arrived at, the ICC [INTERNAL COMPLAINT COMMITTEE] or LCC [LOCAL COMPLAINT COMMITTEE] shall record the settlement and forward it to the employer of the workplace or to the District Officer. 

The copies of the settlement must be provided to the aggrieved woman and the respondent. In case of a settlement, no further inquiry shall be conducted.  That is why it is advisable to always consider the issue carefully and seek legal assistance.

If in case a complaint has been settled though conciliation but the respondent has failed to comply with the terms and conditions of the settlement, then the aggrieved woman can inform the ICC of such non-compliance. Then, the ICC can make an inquiry or forward the complaint to the police.

Factors taken into Consideration at the Time of Determining the Compensation Amount

Section 15 of the Act provides the various factors which are considered by ICC [INTERNAL COMPLAINT COMMITTEE] and LCC [LOCAL COMPLAINT COMMITTEE] while determining the compensation that has to be paid to the aggrieved woman:

  • Mental trauma, pain, suffering and emotional distress caused to her due to the harassment 

  • The loss in the career opportunity due to the incident of sexual harassment

  • Medical expenses incurred by the victim for physical or psychiatric treatment

  • The income and financial status of the Respondent

  • Feasibility of such payment in lump sum or in installments

Penal Offence

When the action comprising sexual harassment amounts to a penal offence, the employer is bound to provide assistance to the aggrieved woman in initiating legal processes.

 

External Links:

[1] ICC Committee: Constitution Of Internal Complaints Committee(ICC) On Sexual Harassment

[2] Principles of Natural Justice: For prevention of miscarriage of justice