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Comments
or suggestions on the draft Bill are welcome by e-mail to: or
may write to: Secretary,
Department of Women and Child Development, `A’ Wing, Shastri Bhavan, THE PROTECTION AGAINST SEXUAL
HARASSMENT OF WOMEN BILL, 2005 Preamble CHAPTER
I Whereas Sexual
Harassment infringes the fundamental right of a woman to gender equality
under Article 14 of the Constitution of India and her right to life and
live with dignity under Article 21 of the Constitution which includes a
right to a safe environment free from sexual harassment. And
Whereas the right to protection from sexual harassment and the right to work with
dignity are recognized as universal human rights by international
conventions and instruments such as Convention on the Elimination of all
Forms of Discrimination against Women (CEDAW), which has been ratified
by the Government of India. And
Whereas the Supreme Court in Vishakha
vs State of Rajashthan [1997(7) SCC.323] has formulated guidelines
to address sexual harassment until a suitable legislation is enacted in
this respect. Be
it enacted by Parliament in the __________ year of the PRELIMINARY 1.
Short title, extent and
commencement: - (1) This Act may be called The Protection Against
Sexual Harassment of Women Act, 2005. (2) It
extends to the whole of (3) It
shall come into force with immediate effect. 2.
Definitions: - In this Act,
unless the context otherwise requires, - (a)
“Aggrieved Woman /Women” means any female person/persons, whether
major or minor, who alleges that she/they have been subjected to sexual
harassment and who can make a complaint regarding the same under the
provisions of this Act. (b)
“Apex Internal Complaints Committee” means an Internal Complaints
Committee set up at the Head office of any Public
establishment/University either at the State/Central level. Illustration: (i)
Committee set up at the head office of every University. (ii)
Committee set up at the head office of each Public establishment at the
State and Central level. (c)
“Appropriate Government” shall have the same meaning as defined in
Section 2(a) of the Industrial Disputes Act, 1947. (d)
“Bar Council” means the All (e
) “Complainant” means (i)
an aggrieved woman (ii)
in case of death of the
aggrieved woman, her legal heir or
representative; (iii).
in case of more than one aggrieved woman, all or any one or more of them
on behalf of herself and others, Or
(iv).
With the authorization on behalf of persons covered by clauses (i) (ii)
and (iii) above: (a).
a registered trade union; (b).
a women’s organisation or a non-governmental organization; (c)
a co-employee . (f)
“Consumer” shall have the same meaning as defined under section 2(d)
of the Consumer protection Act, 1986. Provided
that a person shall be deemed to be a consumer under sec 2(d) of the
Consumer protection Act for all purposes under this act whether any
consideration has been paid for the services or not.
(g)
“Contractual Services” would mean any contract for service whereby
one part undertakes to render services to or for another in the
performance of which he/she is not subject to detailed direction and
control but exercises professional or technical skill and uses his/her
own knowledge and discretion Illustration
of contractual services (i)
People performing a service of acting, singing, and painting or like
services. (ii)
Services of a consultant for an establishment. (h)“Council
of Architects “ Means the Council as constituted under the Architects
Act , 1972. (i)“Council
of Chartered Accountants ” means the Council of the (j)
“Courts” include The Supreme Court of India, The High Courts of the
respective States, the Consumer Courts, Labour Courts and Industrial
Courts and Tribunals and any other court or tribunal as by law
constituted. (k)
“Defendant” means a person against whom an allegation of sexual
harassment is made under this Act or any person who according to the
complainant has either aided or abetted such Sexual Harassment. Explanation:
It is clarified that inaction upon any complaint of Sexual Harassment or
failure to respond to the grievance of a victim of Sexual Harassment
would be deemed to constitute aiding and abetting of such harassment; (l)“Deficiency
in Services” would mean deficiency as defined in section 2(g) of the
consumer protection Act ,1986 and shall also
include Sexual harassment to the Consumer while accessing
a service. Explanation:
An aggrieved woman shall be deemed to be a consumer under the Consumer
protection Act 1986 for the purposes of complaints relating to Sexual
Harassment. (m)
“Educational
Institution” means a school, college, university as by law
established and includes any private coaching class, or any other
institution or establishment at which education or training is provided;
(n)“Employee”
means a person employed for any work directly, or by or through any
agency (including a contractor), with or without the knowledge of the
principal employer, whether for remuneration or not, or working on a
voluntary basis, whether the terms of employment are express or implied,
and includes any person employed as a temporary, casual, badli,
piece-rated or contract worker, probationer, trainee, apprentice or by
any other name called; (o)
“Employer” means: (i).
In relation to an undertaking or department which is carried on by or
under the authority of the Central Government, or a State Government,
the authority prescribed in this behalf, or, where no authority is
prescribed, the head of the department / undertaking; (ii).
In relation to an establishment under any local authority, the authority
prescribed in this behalf, or, where no person is so prescribed, the
Chief Executive Officer; (iii).
In an establishment not covered under (i) and (ii) hereinabove, the
person who, or the authority which, whether called a Manager, Managing
Director, Managing Agent, contractor or by any other name, is
responsible for the ultimate supervision and control of the affairs of
the establishment, in which the employee is employed, and in respect of
a contract employee includes the Principal Employer of the establishment
in which the employee is working, as well as the contractor; (p)
“Enquiry Committee” means a committee to conduct enquiry into
misconduct as defined by this act and by any other law for the time
being in force. (q)
Establishment” means any venture, organization or institution carrying
on systematic activity by co-operation for the production, supply or
distribution of goods and services with
a view to satisfy human wants and wishes irrespective of whether it is
an “industry” within the meaning of section 2(j) of the Industrial
Disputes Act, 1947 or whether it is performing any inalienable sovereign
function and irrespective of
whether the goods and services are provided for any
remuneration or not . Illustration
of establishment:
(i). a factory, mine, plantation or forest;
(ii). a place of sale of agricultural or
other products; (iii).
a brick
kiln or a construction site; (iv).
a shop, business establishment, a corporation, or a private
office; (v).
an office or establishments of a professional and/or consultants
etc as defined in Section 2(ag) (vi).
an industrial establishment;
(vii).
a banking or financial institution; (viii).
a restaurant, club, hotel, resort or other hospitality
establishment; (ix).
a hospital, nursing home; (x).
a mental Health centre as defined in section 2(z); (xi)
Prison as defined in section 2(ad); (xii)
Juvenile home as defined in Section 2(w);
(xiii) A court
premise, police station; (xiv) Any judicial or quasi judicial
establishment; (xv). An educational institution as
defined in section 2(m); (xvi).
an establishment wherein persons are employed for exhibition or
Performance of sporting or any other form of entertainment or
Preparation thereof;
(xvii) Any
government, semi government, establishment or department
Including telegraph office, post office, telephone exchange,
railways,
Statutory board etc., including any governmental scheme
instituted
for profit or otherwise;
(xviii). Any
office of elected representatives, including Parliament and
State Assemblies and institutions of local Government such as
Municipalities, and Municipal Corporations and Panchayats. (xix).
a free trade zone or a special economic zone;
(xx).
a non-governmental organization,
a public or charitable trust a religious
body, trust or
institutions, a co-operative housing society
(xxi) An association; (xxii)
Any form of transportation whether by road, sea or air; (xxiii) Bar Council of (xxiv) Medical Council of (xxv)
Council of the Institute of chartered Accountants of (xxvi) Council of Architects under the
Indian Institute of Architects as defined in section 2(h). (r)
Group of Experts” means the list of experts drawn up by the Local
Officer under this Act, consisting of persons from various fields who
have worked for / in the field of women’s rights, including women’s
rights activists; social workers; activists from NGOs; counselors;
lawyers; doctors; psychiatrists; trade unionists; journalists etc. (s)
“ Head of the Establishment” means the Secretary , Managing director
, Manager or the person by whatever name called who is
responsible for the affairs and has ultimate control of
the establishment. (t)”
Home” means home as defined under Sec2 (d) of the Orphanages and other
Charitable Homes (Supervision and Control) Act, 1960. (u)
“ Hostile Work Environment” is said to be created when any act of
Sexual Harassment has the purpose or effect of unreasonably interfering
with an individuals work performance or creating an intimidating ,
hostile or offensive working environment. (v)
“Internal Complaints Committee” means a committee constituted by the
persons in charge of the establishments under Chapter III of this Act. (w)
“Juvenile Home” would include a Children’s home , an Observation
home and a Special home as defined under section 34, 8 and 9 of the
Juvenile Justice (care and protection of children) Act 2000.
. (x)
“Local Complaints Committee” means a Committee constituted under
Chapter III of this Act,
(y)
“Local Officer” means a person so appointed under Section 14 of this
Act; (z)
“ Mental Health Centre “ includes Psychiatric Hospital as defined in
Section 2(q) of the Mental health Act , 1987 and all
observation wards ,day care centre , inpatient treatment in
general hospitals , ambulatory treatment facilities and other facilities
, convalescent homes and half – way homes for mentally ill persons. (aa)
“Medical Council of India” Means the Medical Council constituted
under the Medical Council of India Act, 1956. (ab)“Misconduct”
means misconduct as defined in the Central Civil Services (Conduct)
Rules 1964 , State Civil Services Rules , The Industrial
Employment (Standing Order) Act
, 1946 , the Advocates Act 1961, the Indian Medical Council Act 1956 ,
The Chartered Accountants Act 1949 , The Architects Act 1972
or in any other laws rules , regulations for the time being in
force. (ac)
“Parliament” means Parliament as defined in article 79 of the
Constitution of India. (ad)
“ Prison” means any jail
, sub jail , camp or place , open or semi open , used permanently or
temporarily under the general or special orders of the government for
the detention and reformation of prisoners and includes all lands and
buildings appurtenant / as defined in sec 3(1) of the Prisons Act 1894. (ae)
“Police Lock Ups” means a place of detention for the purposes of
detaining a person in the lawful custody of the Police under any Law for
the time being in force. (af)“Proceedings”
means any proceedings carried out by any authority prescribed or persons
authorized under this Act. (ag)“Professionals’
includes but are not limited to Doctors , architects, Lawyers, chartered
accountants etc. (ah)
“Public Establishments” means any government, semi government,
establishment or department including telegraph office, post office,
telephone exchange, railways, Police stations
statutory board and., includes any governmental
scheme instituted for
profit or otherwise. (ai)“Services”
means service of any description irrespective of whether it is provided
for any consideration or not which is made available to potential users
and users and includes the
provision of facilities in connection with banking financing ,
insurance, transport, processing, supply of electrical and other energy,
boarding , housing or lodging , entertainment, sporting activities
amusement , the purveying of news of other information or the services
of a professional. (aj)
“Sexual Harassment” includes
such unwelcome sexually determined behavior as physical contact and
advances, sexually coloured remarks, showing pornography and sexual
demand, whether by words or actions. Such conduct can be humiliating and
may constitute a health and safety problem; it is discriminatory when
the woman has reasonable grounds to believe that her objection would
disadvantage her in connection with her employment, including
recruitment or promotion, or when it creates a hostile working
environment. Explanation:
It is clarified that it is the reasonable
perception of the woman that would be relevant in determining
whether any conduct was sexually coloured and, if so, whether such
conduct was unwelcome or not. (ak)
“State Legislature” means State Legislature as defined in Article
168 of the Constitution of India. (al)
“Unorganised Sector” includes all sectors as stated under schedule
II. CHAPTER
II RIGHT
TO BE FREE FROM SEXUAL HARASSMENT Sexual
Harassment Unlawful:- 3.
Every woman shall have
a right to be free from Sexual Harassment and the Right to work in an
environment free from any form of Sexual Harassment. (4)
(i) No employer or any
person who is a part of the management or ownership , a supervisor or a
co-employee shall , sexually harass a female employee of the
establishment where she is employed; whether
the harassment occurs in / at the workplace, or at a place where the
said persons have gone in connection with the work or the workplace, or
at any place whatsoever (ii). No employer or any person who is a part of the management or ownership , a supervisor or a co-employee shall sexually harass a woman who, for whatsoever reason is present in / at the workplace of the said persons, or who comes into contact with the employer, supervisor or employee in connection with her work or the work of the said persons. (iii)
Sexual Harassment will amount to misconduct in employment and the
service rules / regulations governing employment shall govern such
misconduct, in addition to the provisions of this Act; (iv)
Every employer shall take all necessary and reasonable steps to prevent
and ensure that no woman employed in the establishment is subject to
sexual harassment by any third party during the course of employment.
Where any such Sexual Harassment occurs, the employer shall take all
necessary steps to assist the aggrieved woman to redress the act of
Sexual harassment. (5)
No member of a Public establishment shall sexually harass an outsider
who visits the establishment for a legitimate Purpose. (6)(i)
No employee, member of the teaching staff, or student of an Educational
Institution shall sexually harass (a)
a person seeking admission to that establishment as a student or (b)
a student of that establishment. (c)
A member of the teaching staff
(ii).
No student or a member of a teaching staff of an Educational institution
shall sexually harass an employee of the Institution. (7)(i)
No person shall
sexually harass another person in the course of providing or
offering to provide goods or services to that other person. (ii) Sexual harassment of a client in the course of providing services
shall amount to Misconduct under The Advocates Act 1961 , The Indian
Medical Council Act 1956 , The Architects Act 1972 , The Chartered
Accountants Act 1949 and all the laws and rules governing conduct of
professionals. (8)
(i) No person in
custody of a juvenile home, prison or Mental Health care Centre shall
sexually harass an employee of
such an institution . (ii)
No employee of a juvenile home, prison or Mental Health care Centre or
an inmate shall sexually harass a person in custody of the above
institution or an outsider or a visitor who visits the premises for a
legitimate purpose. (9)
(i) No person in the custody of a home as defined under sec 2(d) of the
Orphanages and other charitable Homes (Supervision and Control ) Act
1960 shall sexually harass an employee of such an institution. (ii)
No employee of a home as defined under sec 2(d) of the Orphanages and
other charitable Homes (Supervision and Control ) Act 1960
or an inmate shall sexually harass a person in custody of the
above institution or an outsider or a visitor who visits the premises
for a legitimate purpose. (10)
No Member of Parliament or a State Legislative Assembly or Council shall
sexually harass a member of the staff or any Member of Parliament
, a State Legislative Assembly or Council or any other person
in the course of carrying out their
duties Parliament or
a State Legislative Assembly or Council.
(11)
No judicial officer or any staff employed by such judicial officer or
court shall sexually harass
a non – judicial Officer, a member of the staff of a Court of which
the judicial officer is a Member or any person who visits the Court
premise for a legitimate reason. (12)
No person shall sexually harass a woman in the course of seeking to
enter into a contract for service or during the period of service. (13)
Without prejudice to the rights and remedies available under this act
and in addition thereto thereunder,
a person aggrieved shall
have the right to claim compensation from the defendant for any sexual
harassment to which she may have been subjected to in an appropriate
Court of law. . (14)
In any claim under the preceding clause, the appropriate Court or forum,
upon satisfaction on a balance of probabilities that the defendant has
committed sexual harassment, shall award appropriate just and reasonable
compensation to the person aggrieved taking into account the following
factors: (a)
The mental trauma, pain , suffering
and emotional distress caused to the person aggrieved. (b)
The loss in career opportunities due to this particular incident. (c)
Medical expenses incurred by the victim for physical or psychiatric
help. (d)
The income and financial status of the defendant. (Explanation:
in any action under clause (14), the person aggrieved may submit an
authorized or certified report of the Internal Complaints Committee or
the Local Complaints Committee, the Court or forum shall presume that
sexual harassment has taken place and shall proceed to award
compensation without requiring the person aggrieved to establish her
claim of sexual harassment. However,
the defendant in such a case shall have the opportunity to establish the
such report of the Internal Complaints Committee or the Local Complaints
Committee, as the case may be, is perverse and contrary to law or in
violation of the principles of natural justice.) -------------------------
CHAPTER III AUTHORITIES
UNDER THIS ACT 15.
Duty of the Establishment to
Constitute Internal Complaints Committees :- (1)
It shall be mandatory for every Establishment who employs or has
employed in the preceding 12 months, more than 50 employees, to
constitute an Internal Complaints Committee. An employer who has less
than such number may constitute such Internal Complaints Committee at
its option. In the event of an establishment having more than one office
or branch, it will be mandatory for the employer to constitute an
Internal Complaints Committee in each of them.
Provided that an establishment where an Internal Complaints
Committee has been already set up, the continuance of such a Committee
shall be mandatory notwithstanding that the number of employees then or
at any time thereafter falls below the number prescribed.
.16.
Constitution of Internal
Complaints Committee: - (1)
The Internal Complaints Committee shall consist of not less than three
members. The Committee shall be headed by a woman, who shall be its
chairperson. There shall be at least one external expert on the
committee. (2).
Not less than half of its members shall be women, except in situations
of non-availability of a suitable woman and for reasons recorded in
writing. (3).
No external expert on the Internal Complaints Committee shall be in any
way, either personally or professionally related or in any ways
connected to the employer in whose establishment the Committee has been
established, or to a defendant against whom a complaint is received, or
to the complainant who has lodged the complaint. If the external expert
is so related or in any way connected to the employer, any complainant
may seek his disqualification on this ground, and the employer shall be
bound to replace him with another external expert. If the external
expert is so related to a defendant or complainant in a particular case,
the complainant / defendant may seek, at any time during the
proceedings, his
disqualification on this ground, and the employer shall replace him with
another external expert for that particular case. (4).
If a member of the Complaints Committee is junior in the hierarchy of
the establishment concerned to the defendant, then for that particular
case, and if the complainant so requests, at any time during the
proceedings, that member
shall be substituted on the Committee by another person.
(5).
An Internal Complaints Committee constituted under section 12 shall be
appointed for a period of three years, after which a new Committee shall
be appointed. Provided that the previous Committee or individual members
of the previous Committee may be reappointed. 17.
In public establishments
where an Internal Complaints Committee should have been set up but has
not been set up, an aggrieved woman may approach
the concerned Apex Internal Complaints Committee. In private
establishments where an Internal Complaints Committee should have been
set up but has not been set up, an aggrieved woman may approach
the concerned Local Complaints Committee. 18.
Appointment of Local Officer for every District:- (1) The
appropriate Government shall appoint a Local Officer for every district
in metropolitan areas, and at every block level for non-metropolitan
areas, as may be specified in Rules framed under this Act, to deal with
complaints arising out of provisions of Section 4 of this Act, that are
made by persons in establishments employing less than 50 employees or in
sectors that fall under schedule II of this Act. Provided that, where,
given the number of employees employed therein and nature of the
establishment, a Local officer is of the opinion that any establishment
in a sector that falls under schedule II of this Act, should constitute
an Internal Complaints Committee in that establishment, the Local
officer may direct that establishment to do so.
(2).
The Local Officer specified in sub-section (1) above, shall not be of a
rank lower than the Asst. Labour Commissioner in metropolitan areas and
he / she shall be based in the office of the Labour Commissioner /
Deputy Labour Commissioner. The Local Officer specified in sub-section
(1) above, shall not be of a rank lower than the ----------- in
non-metropolitan areas and he / she shall be based in the office of the
--------------. (3).The
Local Officer shall be a female whenever a female officer meets the
criteria in Section 18 (2) . (4)
Every Local Officer shall draw up a list of a Group of Experts as
enumerated in section 2 (q) at each District / Block Level. (5)
As and when deemed necessary, the Local officer may appoint Special
officers at district / block level to receive complaints and to perform
all others tasks . 19. Constitution of Local Complaints
Committee:- (1). It shall be
the responsibility of the
Local Officer under this Act, to constitute a Local Complaints
Committee. (2)
The said Committee shall consist of at least three persons. At least one
person shall be selected from the Group of Experts as constituted under
section 14(4) of this Act, one person shall be an employers’
representative, selected from employers association in the district
concerned and one person shall be an
employees’ representative, selected from a trade union
functioning in the district concerned. Whatever the size of the
Committee, there shall be an equal number of employers’ and
employees’ representatives. The Committee shall be headed by a woman,
who shall be its chairperson, and at least 50% of the members shall be
women, except in situations of non-availability of suitable women and
for reasons recorded in writing. (3).
No external expert on the Local Complaints Committee shall be in any
way, either personally or professionally related or connected
to a defendant against whom a complaint is lodged before the
Committee, or to the complainant who has lodged the complaint, or to the
employer in whose establishment the defendant or complainant is
employed. If
the external expert is so related or connected to the employer or
defendant or complainant, then the complainant, or defendant as the case
may be, may seek her / his disqualification on this ground, and the
Local Officer shall be bound to replace her / him with another external
expert for that particular case.
(4).
No employers’ representative on the Local Complaints Committee shall,
in relation to a particular case, be in any way, either personally or
professionally related or connected to the defendant or complainant or
to the employer in whose establishment the defendant or complainant is
employed, and the said expert shall not be the member / representative
of any association of employers of which the said employer is a member.
No employees’ representative on the Local Complaints Committee shall,
in relation to a particular case, be in any way, either personally or
professionally related or connected to the employer in whose
establishment the defendant or complainant is employed or to the
defendant or complainant, and the said expert shall not be the member /
representative of a trade union of which either the defendant or
complainant is a member. If
in any of the said instances the employers or employees representative
is so related or connected to the employer, defendant or complainant,
then the complainant, or defendant as the case may be, may seek her /
his disqualification on this ground, and the Local Officer shall be
bound to replace her / him with another employers or employees
representative, as the case may be, for that particular case.
(5).
A Local Complaints Committee constituted under sub-section 1 shall be
appointed for a period of three years, after which a new Committee shall
be appointed. Provided that the previous Committee or individual members
of the previous Committee may be reappointed. (6).
The members of the Local Complaints Committee shall be paid from the
fund of the Local Complaints Committee, a traveling allowance, at such
rates as may be prescribed, for each day on which they are required to
attend the office from which the Committee functions or travel anywhere
else in connection with the work of the Committee. (7).
A Fund for the costs of running the Local Complaints Committees shall be
established by the Finance Department and made available to the Local
Officer of each such Committee. 20. A Public Establishment
shall be required to: a)
Constitute at every district an Internal Complaints committee,
comprising: i)
Two Officers not below the rank of a Joint Director (Preferably women)
of the concerned ministry under whose administrative control the
establishment functions. ii)
An external activist or expert working in the area of women’s rights. (b)
The secretary of that particular department shall be ultimately
responsible for the timely disposal of all complaints of sexual
harassment in such establishment and for carrying out the functions of
the Internal complaints Committee under this act. 21. It shall be the duty of the Head of the Educational Institution to:
(a) Form an Internal Complaints Committee headed by a woman,
Comprising:
i) A representative of the teaching staff
ii) A representative of the staff. iii)
A
representative of the student’s body. iv)
An
external activist or expert working in the area of women’s rights. Provided
that the manner and method of selection of the above member of the
committee shall be determined by the relevant laws, rules, regulations
and ordinances governing the establishment if any. Provided further that
the existing Internal complaints committee shall be deemed to be the
Internal Complaints committee under this act. (b) The
head of the institution shall be finally responsible for the timely
address of all complaints of sexual harassment in such establishment.
(c) Every University shall constitute an Apex Internal Complaints
Committee body to carry out the
Functions of the Internal Complaints
Committee.
The Vice Chancellor of the University shall be ultimately
responsible for the
timely disposal of all complaints of Sexual Harassment in any
given
University and for carrying out the functions of the Internal
Complaints
Committee under this Act. 22. It shall be the duty of the
Superintendent of each prison to:
a) To constitute for every prison, an Internal Complaints
Committee,
Headed by a woman, comprising of: i) Two
member from the Board of Visitors constituted under section 59 of the
Prisons Act. ii) An
external activist or expert working in the area of women’s rights and
prisoner’s rights.
b) It shall be the duty of every superintendent of a prison to
inform all
Inmates their rights to be free from sexual harassment.
c) The Superintendent
shall be responsible for the timely address of all
Complaints of Sexual Harassment in such establishment.
The
Inspector general of that particular area shall be responsible for the
timely address of all complaints of sexual harassment made in prisons
that fall under his jurisdiction. 23. It shall be the duty of the
Medical Officer in charge of the Mental Health Centre, as defined under
sec 2(j) of the Mental Health Act, 1987, to: a)
Make sure that written notices are put up at every doctor’s room, the
reception and the dormitories explaining the mechanism of the complaints
committee and encouraging people to file their grievances in relation to
Sexual Harassment. b)
Inform all patients and family members about their rights to be free
from sexual harassment. c)
Constitute an Internal complaints Committee, headed by a woman,
comprising of: i) Two
members from the Board of Visitors under section 37 of the Mental Health
Act, 1987. ii) An
external activist or an expert working in the area of Women’s Rights.
d) The
Medical Officer in Charge of the Mental Health Centre shall be
responsible for the timely address of all complaints of sexual
harassment in such establishment. 24. It shall be the duty of the head of the Observation Homes, Special Homes
and Children’s Homes, as constituted under Sections 8, 9 and 34 of the
Juvenile Justice (Care and Protection of Children) Act, 2000, to
a) Constitute an Internal complaints committee ,Headed by a woman
, under Sec 35 of the Juvenile Justice (Care and Protection of Children)
Act, 2000, to comprising :
i) Two lady member of the Child Welfare Committee constituted
under
Section 29 of the Juvenile Justice (Care and Protection of
Children) Act,
2000 ii) An
external activist or an expert working in the area of Women’s Rights.
b) The
person in charge of the Observation Homes, Special Homes and
Children’s Homes shall be responsible for the timely address of all
complaints of sexual harassment in such establishment. 25.
It shall be the duty of the manager of the home under sec 21 of the The
Orphanages
and other Charitable Homes Supervision and control Acts, 1960 to
a)
Constitute an Internal Complaints Committee headed by a woman under Sec
30 (c ) of The Orphanages
and other Charitable Homes Supervision and control Acts , 1960
comprising of i)
Two lady members of the Board of control
constituted under sec 5 of The Orphanages and other Charitable
Homes Supervision and control Acts , 1960. ii) An external activist or an expert working in
the area of Women’s Rights. b) The manager of that particular home shall be
responsible for the timely address of all complaints of sexual
harassment in such establishment. 26. It shall be the duty of the Bar Council of India and the Bar Council of
all respective states constituted
under the Advocates Act, 1961, to
a) Constitute a Standing complaints committee, Headed by a woman
comprising of: i)
Two members of that said Bar Council, preferably women. ii) An
external activist or an expert working in the area of Women’s Rights. b)
Notwithstanding anything contained in the Advocates Act such committee
shall be deemed to be the disciplinary body under this act for the
purpose of enquiring into a complaint of sexual c) The
chairman of the said Bar Council shall be responsible for the timely
address of all complaints of sexual harassment in connection with
advocate members of such Bar Council. 27. It shall be the duty of the Medical Council of India under Medical
Council Act, 1956, to
a) Constitute a committee at the state or union territory level,
headed by
a woman, comprising of: i) Two
senior doctors of that particular state or union territory ii) An
external activist or an expert working in the area of Women’s Rights.
b) Notwithstanding anything contained in the Indian medical
council Act
1956, the Internal Complaints committee shall be deemed to be the
Disciplinary committee under this act for dealing with Complaints
of
Sexual Harassment. c) The
Chairman of the said Medical Council of India shall designate for each
state or union territory one member of the Medical Council of India
(elected from the State Medical Register of such state or union
territory) who shall be responsible for the timely address of all
complaints of sexual harassment in connection with members of the
Medical Council of India. 28. It shall be the duty of the Council of Architects constituted under Sec
3 of the Architects Act, 1972 to
a) To constitute a committee headed by a woman, under sec 10 of
the
Architects Act 1972 at the state or the union territory level,
comprising
of: i) Two
Senior Architects of that particular State or ii) An
external activist or an expert working in the area of Women’s Rights.
b) Notwithstanding anything contained in the Architects act 1972
, the said
committee shall be deemed to be the disciplinary committee under
this act
for dealing with complaints regarding sexual harassment .
c) The president of
the said Council of Architects shall
designate for each
state or union territory one member of the Council of Architects
as
responsible for the timely address of all complaints of sexual
harassment
in connection with members of the Council of Architects.. 29. It shall be the duty of the
Council of the a)
Constitute a committee, headed by a woman, under sec 17(2) of the
Chartered Accountants Act at every state or the union territory level,
comprising of: i) Two
members of the Council (preferably women) ii) An
external activist or an expert working in the area of Women’s Rights. b)
Notwithstanding anything contained in the chartered accountants act 1949
the above committee shall be deemed to be the disciplinary committee
under this act dealing with complaints of sexual harassment.
c) The
President of the Council of Institute of Chartered Accountants shall
designate for each state or union territory one member of the 30. It shall be the duty of the Chairman or Speaker of the each house of
Parliament of the State Legislature to a)
Constitute a standing committee headed by a woman, comprising of: i) Two
woman members of the House ii) An
external activist or an expert working in the area of Women’s Rights. b)
The standing committee shall be deemed to be the internal complaints
committee under this act dealing with complaints of Sexual harassment c)
The Chairman or the Speaker shall be responsible for the timely
address of all complaints dealing with sexual harassment .in connection
with members of each house of the parliament or the state assembly. Explanation:
It shall be the duty of the Chairman or the speaker to ensure that none
of the members of the Complaints committee belong to the same political
party as that of either of the parties. 31. It shall be the duty of the: a)District
and Sessions Judge to constitute a District Level Committee on Sexual
Harassment, headed by a woman, comprising of: i) Two
additional District and Sessions Judge (Preferably a woman).
ii)An activist or an expert working in the area of Women’s
Rights. b)The
Chief Justice of a High Court to constitute a State Level Committee on
Sexual Harassment headed by a woman, comprising of: i) Two
Judges of the High Court ii) An
activist or an expert working in the area of Women’s Rights. c)The
Chief Justice of India to constitute a Supreme Court Committee on Sexual
Harassment headed by a woman, comprising of: i) Two
Judges of the Supreme Court ii) An
activist or an expert working in the area of Women’s Rights.
d) These
committees shall be deemed to be the internal complaints committee under
this Act dealing with complaints of sexual Harassment. e) The
District and Sessions Judge, The Chief Justice of a High Court and
The Chief Justice of India shall be responsible for the timely
address of all complaints dealing with Sexual Harassment in their
respective committees. 32. Complaints Committees for
Statutory Boards: Wherever
a Statutory Board has been set up by the Central or a State Government
to regulate employment in a particular field (for example, the Mathadi
Workers’Board, the Security Guards’ Board) then the Chairperson, or
whoever is the designated Head of the Board concerned, shall constitute
a Complaints Committee to deal with any complaints of sexual harassment
made by or against employees who are covered under the said Board. In
setting up such a Committee and dealing with such complaints, the
Chairperson / designated Head of the Board concerned shall follow
exactly the same procedures contained in this Act in respect of Local
officers and Local Complaints Committees. 33.
All Complaints Committees
set up under this Act will
be headed by a woman member of the Complaints Committee. --------------------------- CHAPTER
IV DUTIES
OF AUTHORITIES UNDER THIS ACT 34. General duties of an establishment:
- (1) Every establishment
shall: (a).
Ensure a safe environment free from sexual harassment including
prevention and deterrence of Sexual Harassment (b).
Maintain a proactive program to educate all employees as to the
definition of sexual harassment and procedure for redressal. (c)
Undertake workshops and training programmes at regular intervals for
sensitizing the members (d)
Prominently display notices in
various places in the establishment
spreading awareness about the issue of “Sexual harassment at
the Workplace” and giving
information about the redressal mechanism that has been put in place and
encouraging people to file their grievances. (e)
Facilitate initiation of
proceedings under this Act if an act/s of sexual harassment has been
brought to his/her notice. (f)
Prepare and prominently display a policy for the prevention and
prohibition of Sexual Harassment and until such a policy is prepared and
published the policy
as
per Schedule I shall apply. (h). Not alter to the prejudice of the
Complainant/Supporter/Witness concerned, the conditions of service of
the Complainant/Supporter/Witness prevailing immediately prior to the complaint being lodged as a consequence to the filling and
prosecuting of a complaint under this Act. (i). Not alter to the prejudice of the
Complainant/Supporter/Witness concerned, the conditions of service of
the Complainant/Supporter/Witness prevailing immediately prior
to the complaint being, after such complaint has been made and
pending its prosecution
under this Act. (j).
Bear the expenses of the committee members incurred in relation to the
complaint such as travel allowance. (2).
The onus shall be on the head of the establishment to prove that he/she had taken all
reasonable measures to comply with the duties cast upon the
establishment under this
Act. 35.
Duties of the Internal Complaints Committee, :- (1) It shall be the duty of
all Internal Complaints Committees constituted under this Act, to
promote and facilitate measures taken in the establishment concerned for
the prevention of Sexual Harassment in that establishment and for
conscientisation and Sensitisation regarding the same; to carry out a
Dispute Resolution, if so
requested by the complainant, and to carry out an enquiry into in
complaints of Sexual Harassment referred to it,. Notwithstanding
anything to the contrary contained in any law or rules where such an
Internal complaints committee is carrying out an inquiry into Misconduct
as defined under the Central Civil Services (Conduct) Rules 1964 or the
Industrial Employment (Standing orders) act 1946 then such
committee shall be deemed to be the Disciplinary Committee formed
under such Rules and shall carry out the inquiry under the provisions of
the relevant authority. Provided
however in establishments employing less than 100 employees and those
employed in sectors as specified in schedule II, the Internal complaints
committee shall not carry out any inquiry into any complaints of
misconduct and complaints after being received by the Internal
Complaints Committee shall be forwarded to the Local Complaints
Committee. The enquiry into a complaint of misconduct shall be conducted
by the Local Complaints Committee and such enquiry shall be deemed to be
a disciplinary enquiry under the relevant laws. 36.
Duties of Local Officers: - It
shall be the duty of the Local Officer to receive complaints under this
Act in the district concerned; to
draw up a list of the Group of Experts and constitute a Local Complaints
Committee, furnish a copy of
an Order passed by the Local Complaints Committee to the
complainant, defendant and the employer concerned and carry out any
other functions assigned to her / him under this Act. 37.
Duties of the Local Complaints Committee:-
(1) It shall be the duty of all Local Complaints Committees constituted
under this Act, to promote and facilitate measures for the prevention of
sexual harassment and for conscientisation and sensitization regarding
the same and if so requested
by the complainant, to carry out a Dispute Resolution process and bring
out a settlement in
complaints of sexual harassment referred to it, and ,conduct an enquiry
into misconduct in all establishments employing less than 100 employees
and all sectors that fall under schedule II of this act. ; (2)Notwithstanding
anything contained in any other law for the time being in cases where
the local complaints committee has carried out an enquiry into
Misconduct mentioned under Section 37(1) , the said enquiry shall be
deemed to be a disciplinary
enquiry under the relevant Rules. 38.
Prohibition of Victimisation (1)
No person shall be victimized for anything said or done in relation to
any complaints or proceeding under this act. (2)
A person victimizes another person if the person subjects the other
person or threatens to subject the other person to any detriment in
connection with employment or recruitment or promotion because such
person (i)
Has brought proceedings under this Act against any person. (ii)
The other person associates with the complainant. (iii)
Has given evidence or information or produced a document, in connection
with any proceedings under this Act. (iv)
Has otherwise done anything in accordance with this Act in relation to
any person. (v)
Has alleged that any person has contravened a provision of this act Explanation:
In determining whether a person victimizes another person it is
irrelevant (a)
Whether or not a factor in the above sub section is the only or dominant
reason for the treatment or threatened treatment as long as it is a
substantial reason (b)
Whether the person acts alone or in association with any other person. (3).
A person shall not request, instruct, induce, encourage, authorize or
assist another person to contravene a provision of Section 38(2).
39.
Vicarious liability: (1)
If an employer or any person who is the head of the establishment in the
course of employment or while acting as an agent contravenes a provision
in Chapter II or Section 38(2) or engages in any conduct which
contravenes the provision of chapter II or Section 38(2) then both the
head of the establishment and
the employer must be taken to have contravened the provision and a
complaint about the contravention may be lodged against either or both
of them . (2)
An employer or the head of the establishment
is not vicariously liable for a contravention of Chapter II or
Section 38(2) if the employer or principal proves, on the balance of
probabilities, that the employer or the principal took reasonable
precautions to prevent the employee or agent contravening the Bill and
took reasonable action upon receipt of a complaint relating to Sexual
Harassment.
CHAPTER V PROCEDURE
FOR LODGING A COMPLAINT 40.
Before the Internal Complaints Committee: - (1).
However in an establishment where an Internal Complaints Committee has
been set up, a complaint under this Act may be lodged with the
appropriate authority or any person designated to receive complaints or
with any member of the Internal Complaints Committee so appointed or
constituted under this Act. (2).
If the aggrieved woman alleges that she has been subject to an act of
sexual harassment at another branch or office to which she has been
deputed, or has visited in connection with her work, a complaint in this
regard can be filed either
with the Internal Complaints Committee in her regular branch or office
or with the Internal Complaints Committee in the branch or office in
which the act of sexual harassment allegedly took place. (3)
Within 1 week of receipt of the complaint, the appropriate authority or
member of the Committee to whom the complaint is made shall communicate
the same to the chairperson of the Internal Complaints Committee. 41. Before the Local Officer / Local
Complaints Committee:- (1)
Save and except for the cases specified in Section 40 above, a Complaint
under this Act may be lodged with the Local Officer. Provided
that: (i).
In cases where the allegation of sexual harassment is against the
employer of the aggrieved woman, or against the person in charge of the
establishment concerned, she
may lodge the complaint with the Local Officer if she so chooses; (ii).
Where an Internal Complaints Committee should have been set up by an
employer under the provisions of this Act, but has not been set up, an
aggrieved woman employed by the said employer may
lodge a complaint of sexual harassment with the Local Officer. (iii).
Where the Local Officer has reason to believe that a number of women in
an establishment are being subjected to sexual harassment, but that due
to grave danger or fear of repercussions, they are not in a position to
file a complaint or give a written consent for the filing of a complaint
regarding the same, the Local Officer may act suo motto in the matter
and proceed as if a complaint regarding the same had been filed before
her. (2).
When a Complaint is lodged before the Local Officer, the said Officer
shall constitute the Local Complaints Committee from the Group of
Experts within 15 days of the receipt of the said complaint and
designate a female member as its Chairperson. (3).
The Committee so constituted shall sit within the local proximity of the
Complainant’s workplace. 42. Oral Complaints to be Reduced in
Writing: - It shall be duty
of the Authority / person before whom an oral complaint is made under
this Act to reduce the said complaint in writing and read out the
complaint to the complainant in the language requested by the
complainant and obtain the signature of the complainant. 43. Written Consent
Mandatory in Specific
Situations:- (1) A complaint
lodged under section 40 or 41 of this Act by a complainant under Section
(2)(d)(iii) or (iv) on behalf of the aggrieved woman, or in the event of
her death by her heir or legal representative, shall be filed only after
obtaining a written consent of the aggrieved woman or, in the case of
her death, her heirs or legal representative, authorising the
organisation or individual to file the complaint on her/their behalf. (2).
The consent given under subsection (1) herein may be withdrawn at any
stage of the proceedings by the aggrieved woman or her legal
heir/representative. 44.
Where Sexual harassment amounts to criminal offence:- (1)
Where the conduct of sexual harassment amounts to a specific offence
under the Indian Penal Code or under any other law; it shall be the duty
of the appropriate authority / Member of the Committee / Local Officer
who receives such a complaint to immediately inform the complainant of
her right to initiate action in accordance with law with the appropriate
authority, and to give advice and guidance regarding the same. Any
such action or proceedings initiated shall be in addition to proceedings
initiated and /or any action taken under this Act. (2)
Irrespective of whether the complainant opts to initiate criminal
proceedings under the Indian Penal Code, the Special Officer / Local
Officer / Member of the Committee and the Complaints Committees shall be
bound to initiate and conduct proceedings as laid out under this Act. 45.
Confidentiality of Complaints:-
It shall be the duty of all the persons and authorities designated under
this Act to ensure that all complaints lodged under this chapter shall
be as confidential as possible. (2). The name of the aggrieved woman shall not be referred to in
any records of proceedings, or any orders or Judgements given under this
Act; (3). The name of the
aggrieved woman nor her identity shall be revealed by the press / media
or any other persons whilst reporting any proceedings, case, order or
Judgement under this Act. ------------------------- CHAPTER
VI PROCEDURE
IN CASE OF MISCONDUCT 46.
Complaints Committee :- On
receiving a complaint of sexual harassment, an Internal Complaints
Committee, or Local Complaints Committee as the case may be, shall
follow the below detailed procedure, and constitute an enquiry committee
to enquire into the misconduct . 47.
Representation:- Notwithstanding
anything contained in any other Act for the time being in force, both
the complainant and the defendant shall have the right to be represented
in any proceedings under this Act by any person of their choice in any
enquiry into misconduct. 48.
Dispute Resolution prior to enquiry :- (1)
The Internal Complaints Committee or the Local Complaints Committee may
if, and only if so requested by the aggrieved woman, try to resolve the
matter informally by intervening and
thereby permitting the parties to resolve the matter mutually before the
commencement of the formal enquiry proceedings referred to in section
49. The person to carry out the Dispute Resolution Process shall be
chosen from the Internal Complaints Committee by the aggrieved woman.
The Local Officer shall carry out the Dispute Resolution Process on a
Local Complaints Committee. (2)
Any settlement brought about by such Dispute
Resolution must be mutually acceptable to both the aggrieved woman and
defendant. (3)
Where any settlement between the aggrieved woman and defendant, as per
sub-section (2) is reached, the Internal Complaints Committee or the
Local Complaints committee will record the Dispute Resolution process
and the settlement reached and send it to the employer. A copy of the
same will be furnished to the aggrieved woman and the defendant. (4).
Notwithstanding what is stated in sub-section
(2) and (3) above, the aggrieved woman shall have the right to
withdraw from any Dispute Resolution process undertaken under this
section, or to challenge any settlement on the ground that her consent
for the settlement was obtained by force, fraud, coercion
or undue influence or on
the ground that the terms of settlement have been breached; (5).
Where no mutually agreeable settlement can be reached during such
above-mentioned Dispute Resolution process, the Internal Complaints
Committee or the Local Complaints Committee
shall write a report to that effect, and within a period of two
weeks from the termination of the
Dispute Resolution process, proceed to hold an enquiry as per
section 49. (6).
Any Dispute Resolution carried out by the Internal Complaints Committee
or the Local Complaints committee under this section shall be completed
within a period of one month of the receipt by the Committee of the
complaint of sexual harrassment. .49.
Conducting of Enquiry:- (1) Where
no Dispute Resolution process
referred to in section 48 has
been requested by the aggrieved woman, or if requested and carried out,
has not been successful, the Internal Complaints Committee or the Local
Complaints Committee as the case may be,
shall within a period of two weeks from the completion of any
mediation process held, or if not held, within two weeks of its receipt
of the complaint, proceed to conduct a full enquiry into the allegation
of sexual harassment, in accordance with the rules and regulations
governing misconduct for that establishment and as per the procedures
set out below. (2).
Provided further that where a Dispute Resolution process has been held
as per section 48, but not succeeded, the report of the failed Dispute
Resolution process shall not be used in the enquiry or made available to
the Complaints Committee members. 50.
Participation of Complainant: - (1).
Notwithstanding anything contained in any law for the time being in
force, the complainant and her representative shall have the right to
remain present throughout the enquiry proceedings, to lead evidence and
produce witnesses and to cross examine the defendant and any witnesses
produced by him. 51.
Framing
of Charge sheet: If
a complainant feels that a charge sheet issued to a defendant pursuant
to the complainant’s complaint of sexual harassment does not fully or
properly deal with the allegations leveled in her complaint, she can
bring the same to the notice of the Complaints Committee, which shall
inform the employer of the same and request the employer to reframe the
chargesheet accordingly. 52. Procedure To Be Followed by the Internal Complaints Committee or the Local Complaints Committee In Conducting of Enquiry:- (1).
In conducting an enquiry under this Act the Enquiry Committee shall
abide by the established procedures and principles of natural justice
followed while conducting domestic enquiries and in conducting an
enquiry under this Act in respect of establishments covered by the
Central Civil Services (Conduct) Rules, 1964, or State Civil Service
Rules, or the Industrial Employment (Standing Order) Act 1946, the
Complaints Committee shall follow the procedures laid down for
conducting a domestic enquiry in the said Act and Rules, whichever is
applicable except to the extent modified hereunder: (a).
The employer / establishment shall hand over to the convenor of the
Committee a copy of the chargesheet issued to the defendant and
reply/explanation (if any) of the defendant prior to the commencement of
the enquiry, and the Committee shall hand over copies of the same to the
complainant by hand delivery duly acknowledged or by Regd. A.D post
within 3 days of its receipt of the same and prior to the commencement
of the enquiry; (b).
The Committee shall give 7 days notice by hand delivery duly
acknowledged or by regd A, D Post to the complainant and the defendant
to appear for the first date of the enquiry which shall be specified.
The notice shall state that the complainant and defendant shall be given
an opportunity of producing evidence, examining witnesses etc if any. c).
At the commencement of the enquiry the committee shall explain to both
the complainant and defendant the procedure which will be followed in
the enquiry. d).
The enquiry shall be conducted in Hindi, English or the local language,
whichever is requested by the defendant; e).
If the complainant or the defendant desire to examine any witnesses they
shall submit in writing to the Convenor of the Committee the names of
witnesses whom they propose to so examine. If the complainant or
defendant desires to tender any documents by way of evidence before the
Committee, they shall furnish such documents to the Committee with
copies of the same for the defendant / complainant to whom the
Committee shall hand over the said copies. All documents tendered to the
Committee shall be taken on record by it and given an exhibit number. f).
The evidence of the employer / establishment and of the complainant and
their witnesses be recorded. After the witness has deposed, he shall be
offered for cross-examination to the defendant. After the completion of
the cross examination the evidence of the next witness shall be
recorded. After the evidence of the employer / establishment and of the
complainant has been completed, the evidence of the complainant and any
witnesses produced by him shall be recorded.
After the defendant and each witness has deposed, he/she
shall be offered for cross-examination to the employer /
establishment and the complainant. Sufficient opportunities shall be
given to examine all witnesses notified by both parties. g).
All proceedings of the Enquiry Committee will be recorded and the
same together with the statement of witnesses shall be endorsed by the
complainant defendant and representative of the employer / establishment
in token of authencity thereof. The refusal to endorse the same by
either party shall be endorsed by the convenor. All parties involved in
the process are at liberty to place on record any objections or
observations As well as the Defendant, the Complainant shall be
furnished with a copy of the enquiry proceedings at the end of each
proceeding. h).
The Committee shall see that every reasonable opportunity is extended to
the complainant and to the defendant, for putting forward and defending
their case. i).
The venue of the enquiry should be as per the convenience of the
complainant. k).
On the completion of the enquiry, the Committee shall submit a written
Enquiry Report. The enquiry report shall specify the details of the
charge against the defendant, the evidence led in the enquiry and the
reasons by which the Committee has reached its
decision.
No observations regarding the work and behaviour of either the
complainant or defendant shall be made which are not related to the
alleged act of sexual harassment. However, the Committee may consider as
relevant any earlier complaints of sexual harassment against the
defendant. The Committee will also consider the various myths and facts
in relation to Sexual Harassment so as to give a well-thought out
decision. 53. Rules of Evidence before Complaints
Committee:- (1) Notwithstanding
anything contained in this Act, in conducting an Enquiry under this Act,
an Enquiry Committee may give
directions relating to procedure that, in its opinion, will enable delay
to be reduced and will help to achieve a prompt hearing in a manner
which is appropriate to the matters at issue between the parties.
(2). In particular, in conducting such an enquiry, the Enquiry
Committee :
(i). shall be
sensitive to the covert, private and insidious nature of sexual
harassment and shall take into account that often the aggrieved woman
may not be able to lead direct
or corroborative evidence.
(ii) shall not permit any evidence or examination based on the
aggrieved woman’s character, personal life, conduct, personal and
sexual history.
(iii). shall take note of the respective socio-economic positions
of the parties, their hierarchy in the respective organization /
workplace, the employer-employee equations and other power differences
while appreciating the evidence.
(iv). shall, inform the alleged victim of sexual harassment, that
she may give her evidence in writing provided that she makes herself
available for cross examination on the same, unless the alleged victim
of sexual harassment opts to give her evidence orally;
(v). may direct the
Defendant to submit the intended questions for cross-examination in
writing and the Committee may disallow questions it feels are
derogatory, irrelevant or slanderous to the aggrieved woman.
(vi). shall, inform the alleged victim of sexual harassment, that
she may give her answers to questions of a sensitive
nature in writing immediately in the enquiry proceedings during
cross examination. 54. Power to Issue Interim Orders:- (1)
The Enquiry Committee shall
have the power to issue appropriate Interim orders directing the
employer, on the demand of either the complainant or any witness giving
evidence in her support, to implement such measures as transfer,
changing shifts etc. of either the complainant, witness or defendant,
granting of leave to the complainant,
so as to protect the complainant and witnesses against
victimisation and discrimination and mental or physical distress. (2)
May issues such other interim orders as may be deemed necessary to
ensure the safety of the complainant/supporter/witness. 55.
Where an enquiry is held by a Local Complaints
Committee, the employer of the complainant shall pay to her and any
other employee who deposes on her behalf travel allowance and wages for
the days attended before the Committee. 56.
Enquiry to be completed within 90 days:- Notwithstanding
anything contained in any law for the time being in force an enquiry
under this chapter shall be completed, including the submission of the
Enquiry Report, within a period of 90 days from the date on which the
enquiry is commenced. Any delay in completion shall be done for reasons
given in writing. 57.
Findings and Directions: (1)
On the completion of an enquiry under section 49 of this Act by an
Internal Complaints Committee or a Local Complaints Committee, the said
Committee may by a detailed and reasoned order: (a)
Dismiss the complaint which was subject of the Inquiry. (b)
Find the complaints proven on a balance or probabilities and give a
finding to that effect. (c)
Recommend to the employer that a punishment be imposed upon the
defendant, according to the gravity of the offence of which he has been
found guilty of and in accordance with the service rules/standing orders
applicable to the establishment. In absence of such rules/orders, the
committee may direct that the punishment to be imposed on the defendant
should be according to the gravity of the act which he has been found
guilty of. In addition, the Committee may recommend that the defendant
give a written apology to the aggrieved woman clearly indicating that
such behaviour will not be repeated and that no retaliatory steps will
be taken by him/others on his behalf. (2).
Further, if a Local Complaints Committee finds a defendant guilty of the
sexual harassment complained of, the Local Complaints Committee can
recommend that the defendant pay compensation to the aggrieved woman,
commesurate with the gravity of the act of sexual harassment and the
wage of the defendant. Any such compensation shall be deducted by the
employer from the monthly wages of the defendant, in such installments
as the employer deems fit, and paid over to the aggrieved woman. 58.
Action to Be Taken After Enquiry: (1)
The report of the Enquiry committee
shall be deemed to be an inquiry report under the Central Civil Services
(Conduct) Rules , 1964 and the Standing Orders of the establishment /
Model Standing Orders under the Industrial Employment (Standing Order
)Act , 1946 or any other rules enabling the conduct of an enquiry into
misconduct as the case may be. Thereafter the disciplinary authority
will act on the report in accordance with the said rules. However,
the employer shall act upon the findings and recommendations in
the report and implement the same. If the employer disagrees with or
wishes to modify the same, he / she may do so by stating the reasons in
writing. (2).
The disciplinary authority shall however only take such action after
giving both the complainant and defendant an opportunity to make an oral
representation (and written
if they so chose) regarding the same, which representation shall be made
within 2 weeks of their respective receipt of the copy of the report.
The disciplinary authority shall takes its decision within two weeks of
its receipt of the said representation. (3).
No person accused of an act of sexual harassment under this Act shall be
part of the decision making process referred to in this section. (4).
Where the person accused of sexual harassment is a sole proprietor of a
proprietary undertaking, or a partner of a partnership undertaking not
registered under the Companies Act, 1956, and an Enquiry has been held
by a Local Complaints Committee, then the findings and recommendations
of the Local
Complaints Committee referred to in this section shall be binding on the
said undertaking. 59. Delay in Filing the Complaint:- Any
perceived delay in filing a complaint under this Act, by itself, shall
not be a relevant factor in deciding the veracity of the complaint or in
appreciating evidence presented.
CHAPTER
VII 60.
Appeals Against Decisions / Reports of
Complaints Committees:- (1). Any defendant aggrieved by a decision/ action taken by his employer
following an enquiry instituted under this Act, may challenge the same
before the court / forum to which he is ordinarily entitled to approach
to challenge any decision of the management taken against him in respect
of any misconduct. (2)
Any aggrieved woman who is aggrieved by a decision of the employer or
the report of Complaints Committee in respect of a complaint of sexual
harassment filed by her, may: - (a). If both she and the
defendant fall within the purview of the Central Civil Services
(Conduct) Rules, 1964, or State Civil Service Rules:
(i).
Challenge the report / decision on points of fact and law, before the
forum to which the defendant would ordinarily be entitled to approach to
challenge any decision of the management taken against him in respect of
any misconduct, and pray that action as per the said rules be taken by
the employer against the defendant; (b). If both she and the
defendant are employed in an establishment falling within the purview of
the Industrial Disputes Act, 1947, and both are a “workman” within
the meaning of the said Act: (i).
Make a complaint in writing on points of fact and law, and
praying that action as per the said rules be taken by the employer
against the defendant, to the Industrial Tribunal / Court to whom a
dispute raised by the defendant against a decision regarding misconduct
would ordinarily be referred, and on receipt of such a complaint, the
Industrial Tribunal / Court shall adjudicate upon the same as if it were
a dispute referred to it in accordance with the provisions of the
Industrial Disputes Act, 1947, and shall submit its award to the
Appropriate Government and the provisions of the Industrial Disputes
Act, 1947 shall apply accordingly;
(c). If
the establishment concerned, or either the aggrieved woman or the
defendant does not fall within the purview of the Industrial Disputes
Act, 1947, or the Central Civil Services (Conduct) Rules, 1964, or State
Civil Service Rules, file proceedings, on points of both fact and law,
before a civil court, praying that action as per the service rules /
rules and regulations applicable to the establishment, be taken by the
employer against the defendant. (3)
Any aggrieved woman who is aggrieved by a decision of the employer not
to issue a charge sheet against a person alleged by her to be guilty of
sexual harassment, may challenge the same before the forums indicated
above, praying that a charge sheet be issued against the said person and
proceedings be instituted against him under this Act. (4).
Any aggrieved woman
who feels that a charge sheet
issued to a defendant pursuant to the complainant’s complaint of
sexual harassment does not fully or properly deal with the allegations
leveled in her complaint may challenge the same before the forums
indicated above, praying that a charge sheet be issued against the said
person fully and properly
dealing with the allegations leveled in her complaint. (5)
Any aggrieved woman who is aggrieved by the failure of an employer not
to constitute a Complaints Committee as per the provisions of this Act,
or who is aggrieved by the nature of the constitution of a Complaints
Committee, may challenge the same before the forums indicated above. -------------------------- CHAPTER
VIII MISCELLANEOUS 61. Confidentiality:- (1). Employers, members
of Complaints Committees and others responsible for the implementation
of this Act will recognize that confidentiality is important and will
respect the confidentiality and privacy of individuals reporting or
accused of sexual harassment to the extent reasonably possible. (2).
The name of the aggrieved woman shall not be referred to in any records
of proceedings, or any orders or Judgements given under this Act; (3).
The name of the aggrieved woman nor her identity shall be
revealed by the press / media or any other persons whilst reporting any
proceedings, case, order or Judgement under this Act. 62. Services of Counsellor to be made
available to the Complainant:- On
the request of a Complainant, a counsellor shall be made available to an
aggrieved woman, at the cost of the employer or the head of the
Establishment , at any time after the lodging of a complaint, whether
before an Internal Complaints Committee or Local Officer. This shall be
in addition to any proceedings / enquiries which have been instituted
under the Act. 63.
Withdrawal of Complaint:- At any stage
after the filing of a complaint and during any proceedings in respect of
it under this Act by the Complaints Committee, the aggrieved woman shall
have the right to withdraw the complaint and the Committee/person shall
permit her to withdraw the complaint and if an inquiry has commenced,
shall discontinue the inquiry. If
it is brought to the notice of the Complainants Committee, or the
Committee is of the opinion that, pressure is being brought
on the complainant or the witnesses to withdraw their statements
or not go through with the complaint then the committee will record
this. 64. Complainant/Witnesses/Supporters not
be penalized:- If a complaint
of sexual harassment is dismissed by a Complaints Committee under this
Act, no action whatsoever (including the recovery of any costs involved
in investigating / enquiring into the complaint) may be taken in regard
to the same against the complainant/witnesses/supporters by the
employer. 65. No court fees payable:- Where
an aggrieved woman institutes any suit or legal proceedings in a civil
court in respect of an act of sexual harassment which is unlawful under
this Act, no court fees will be payable by the woman. 66.
Where an establishment contravenes any of the provisions of, fails to
carry out any of its duties under, this Act, then any person concerned
with that establishment may file a case against the establishment,
praying for relief including a direction to the establishment to comply
with the provisions of the Act, in a civil court, or, if the
establishment is covered under the provisions of the Industrial disputes
Act, then raise a demand under the said Act, and if it is covered by the
Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour
Practices Act, 1971, file a complaint under the said Act, which shall be
amended accordingly. (2).
Any person concerned with that establishment may also lodge a complaint
in this regard against the establishment with the Local Complaints
Committee in rhe district / block level, and the Local Complaints
Committee may direct the establishment to comply with the provisions of
the Act, and impose a fine of a minimum of Rs.10,000/- for its
non-compliance with the Act. 67. Complaints Committees to submit
Annual Reports:- Each
Internal Complaints Committee shall make an annual report to the
appropriate government / head of the department of the relevant
Ministry/Local officer . The same shall be forwarded by the Local
Officer to the Central Government, Ministry of Labour, along with the
Local Officer’s own annual report of the complaints dealt with and
action taken by her and the Local Complaints Committee constituted by
her. 68. Workers Initiative: - Employees
should be allowed to raise issues of sexual harassment at the worker's
meeting and in any other appropriate forum and it shall be affirmatively
discussed in employer-employee meetings. 69.
Act not in derogation of any other Law:- (1).
The provisions of this Act
shall be in addition to and not in derogation of the provisions of any
other law for the time being in force. Provided
that nothing in this Act shall effect any law, agreement, contract,
terms and conditions of service or policy regarding sexual harassment at
the workplace which applies to any woman employee / student on the date
on which this Act comes into force, if any such law, agreement,
contract, terms and conditions of service or policy regarding sexual
harassment at the workplace is/are more favourable to the women
concerned than the provisions of this Act. (2).
Any proceedings instituted by an aggrieved woman under this Act shall be
in addition to any other proceedings, whether civil or criminal, which
she may chose to file under any other provision of law before any other
court, tribunal , authority or forum.
70.
Power to make rules:- The
Central Government may, by notification in the Official Gazette, make
rules for carrying out the provisions of this Act. 71.
To address the issue of Sexual harassment the following acts as
mentioned in schedule I shall stand amended. _________________________________________________________________ SCHEDULE
I 1.
The following item shall be added as Item 17 to The Fifth Schedule, Part
I, and as Item -- to The ----- Schedule, Part I of the Industrial
Disputes Act, 1947: “to,
in any manner whatsoever, sexually harass a female employee “ The
following item shall be added as Item 18 to The Fifth Schedule, Part I,
of the Industrial Disputes Act, 1947: “To
dismiss, discharge or in any way adversely alter the service conditions
of a female employee, (or any fellow employee who stands as a witness in
this regard), on account of her making or having made an allegation of
sexual harassment, or to fail to carry out any
duties cast under the Protection
Against Sexual Harassment of Women Bill, 2005”. 2. The following item shall be added as Item 11 to Schedule IV and
as Item --- to Schedule III of the Maharashtra Recognition of Trade
Unions & Prevention of Unfair Labour Practices Act, 1971. “to, in any manner whatsoever, sexually harass a female employee
“ The following item shall be added as Item 12 to Schedule IV of the
Maharashtra Recognition of Trade Unions & Prevention of Unfair
Labour Practices Act, 1971. “To
dismiss, discharge or in any way adversely alter the service conditions
of a female employee, (or any fellow employee who stands as a witness in
this regard), on account of her making or having made an allegation of
sexual harassment, or to fail to carry out any duties cast under the Protection
Against Sexual Harassment of Women Bill, 2005 3.
The following Item shall be added into Item
9 of the Schedule in The Industrial Employment (Standing Order) Act 1946 “Note:
Any complaints of Sexual Harassment shall also be included as misconduct
“ The
Following Item shall be added (L)
to Rule 14(3) of the Industrial Employment (Standing Orders ) Central
Rules , 1946. “In
any manner whatsoever sexually Harasses a female employed in the
establishment” 4.
The Following item shall be added to Section 2(g) the Consumer
Protection Act, 1986 “Any
form of Sexual harassment faced by the consumer
at the time of accessing services shall also be a deficiency in
service “ . 5.
The following Item shall be added as section 6(c) to The Advocates Act
1961. “
Note : all cases of Sexual Harassment shall also fall under the
definition of Misconduct” The
following Item shall be added as section 7(b) to The Advocates Act 1961. “Note:
Prohibition of Sexual harassment shall also fall under the definition of
Professional Conduct” The
following Item shall be added as section 35(1) B
to The Advocates Act 1961. Note
: All complaints of sexual Harassment shall also be included in the
definition of Professional Misconduct” 6.
The following item shall be added as Section 33(o) to The Indian Medical
Council of India Act, 1956. “Protection
against Sexual Harassment ”. The
following item shall be added as Section 20A (3) to the Indian Medical
Council of India Act , 1956. “Any
form of Sexual Harassment shall also be included in this definition “. The
following shall be added as explanation to Sec 7.4 of The Indian Medical
Council (Professional Conduct Etiquette and Ethics) Regulations, 2002 “Explanation:
any form of Sexual harassment shall be to be an improper Conduct” 7.
The following shall be added to Section 22(3) of the Architects Act
1972. “Prohibition
of Sexual harassment shall also be included under the definition
of Professional Conduct and Code of Ethics” The
following shall be added to Section 45(2)(i) of the Architects Act 1972. “Any
form of Sexual Harassment shall also be included under the definition of
Professional conduct and code of Ethics” The
following shall be added as Section
2(1)(xxvi) of the Architects (Professional Conduct) Regulations , 1989 “Not
Sexually harass any person in the course of providing services “. 8.
The following item shall be added as Item 13 to the part I of Schedule I
of the Chartered Accountants Act 1949. “In
any manner whatsoever, sexually harasses a client”. The
following item shall be added as Item (d) to the part II of Schedule I
of the Chartered Accountants Act 1949. “In
any manner whatsoever, sexually harasses a client”. 9.
The following item shall be added as Section 13(4) to the Mental Health
Act, 1987. Any
Compliant of Sexual Harassment made to the concerned authority shall
also be included under this clause”. 10.
The following item shall be added as Subsection (3) to Section 11 of
the Prisons Act 1894 “It
shall also be the duty of the superintendent to constitute an Internal
complaints committee to deal with complaints regarding Sexual harassment
“. The
following Item shall be added as subsection (29) to section 59 of the
Prisons act, 1894 “To
prevent and prohibit Sexual harassment “ 11.
The following Item shall be added as Item (3) to Section 35 to the Juvenile Justice (Care and Protection of Children) Act, 2000, “Committees
for Inquiring into Sexual harassment shall also be one of the inspecting
Committees appointed under this section”. 12.
The following item shall be added into Sec 21 of the Orphanages and
Other Charitable Homes (Supervision and Control)Act , 1960.
“ It shall also be the duty of the manager to constitute an
Internal Complaints committee to deal with complaints regarding Sexual
Harassment “. The
following item shall be added as Subsection 30(2)(k) to section 30 of
the Orphanages and Other Charitable Homes (Supervision and Control ) Act
, 1960. “Prevention
and redressal of complaints of Sexual Harassment in homes”
SCHEDULE II LIST OF EMPLOYMENTS IN THE UNORGANISED SECTOR1. AGRICULTURE a. agriculture b. agricultural machinery handling c. small scale farming 2. CONSTRUCTION a. construction work b. brick-kiln work c. building and road maintenance d. carpentry e. construction of tents and pandals, supply of utensils and decorations for functions f. quarry work g. welding h. stone crushing i. minor minerals and mines work j. sand mining 3. HANDLOOMS & POWERLOOMS, DYEING
a. handloom weaving of cotton and silk b. powerloom weaving c. cloth printing d. bleaching & dyeing e. ginning 4. FISH a. fishing b. fish selling c. fishery production d. fish processing 5. POULTRY & ANIMAL HUSBANDRY a. animal husbandry b. dairying and allied activities c. shepherding 6. TEA, COFFEE, RUBBER,
CASHEW, a. cashew processing b. gardening and parks maintenance c. horticulture and flori culture d. plantation (other than those covered under Plantations Labour Act, 1951 (Act No.69 of 1951) e. sericulture (silk rearing) 7. FORESTS & ALLIED ACTIVITES
a. forestry operation b. honey gathering c. minor forest produce gathering d. tendu leaves collection 8. TREE CLIMBING, COIR a. coir processing / manufacture b. toddy tapping c. coconut peeling d. tree climbing 9. HOME BASED WORK a. agarbatti making b. beads making / piercing c. beedi & cigar manufacture d. bindi work e. coaching service f. envelope & file making g. masala making h. matches manufacture i. pappad making j. pickle making 10. VENDORS a. hawking and vending b. newspaper vending c. panwallaha service 11. HANDICRAFTS a. blacksmithy b. goldsmithy c. pottery d. artist e. sculpture f. cane / reed work g. carpet weaving h. chikan work i. hand embroidery work j. floral work and garland making 12. SERVICES (TRADITIONAL & MODERN) a. beautician b. hair dressing c. health service d. rag picking e. scavenging f. shoe shining work g. sweeping h. laundry work i. child care j. cook k. security service l. band playing m. cable TV operation n. folk arts o. video & photography p. sound & light service 13. SHOPS & ESTABLISHMENTS a. shops & establishment service b. catering c. clubs and canteens service d. coaching service e. computer and information technology related services f. courier service g. data entry operation h. distribution of petroleum products i. electronic and electrical goods repairs j. health services k. hotel and restaurant services l. ngo services m. packing and packaging n. petrol bunk / pump and allied service o. security service p. telephone booth service q. jute products r. band playing s. cable TV operation t. folk arts u. video & photography v. sound & light service 14. TRANSPORT & ALLIED a.
transport services (driving, conducting, cleaning etc) 15. SALT PANS
a.
salt pan work 16. SMALL SCALE & COTTAGE INDUSTRIES a.
arrack and liquor production and vending 17.
DOMESTIC a.
gardening, 18.
LOADING UNLOADING GOODS SHEDS, YARDS MARKETS ETC a.
headload work 19. TAILORING |